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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Biodiversity Conservation Bill 2015
Contents
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Objects of Act 2
4. Principles of ecologically sustainable development 2
5. Terms used 3
6. Lawful activity 18
7. Lawful authority 18
8. Native species 19
9. Determination as to fauna, flora or species 19
10. Determination of certain native species or
taxonomic groupings as fauna or flora 20
11. Crown bound 20
12. Application of Act in relation to aquatic matters 21
Part 2 -- Listing of native species,
ecological communities and
threatening processes
Division 1 -- Native species
Subdivision 1 -- Specially protected species
13. Listing of specially protected species 22
14. Criteria for categorisation as species of special
conservation interest 22
15. Criteria for categorisation as migratory species 23
16. Criteria for categorisation as cetaceans 24
17. Criteria for categorisation as species subject to
international agreement 24
18. Criteria for categorisation as species otherwise in
need of special protection 24
166--2 page i
Biodiversity Conservation Bill 2015
Contents
Subdivision 2 -- Threatened species
19. Listing of threatened species 25
20. Criteria for categorisation as critically endangered
species 25
21. Criteria for categorisation as endangered species 25
22. Criteria for categorisation as vulnerable species 26
Subdivision 3 -- Extinct species
23. Listing of extinct species 26
24. Criteria for categorisation as extinct species 26
25. Criteria for categorisation as extinct in the wild
species 27
26. Rediscovered species 27
Division 2 -- Ecological communities
Subdivision 1 -- Threatened ecological communities
27. Listing of threatened ecological communities 28
28. Criteria for categorisation as critically endangered
ecological community 28
29. Criteria for categorisation as endangered
ecological community 29
30. Criteria for categorisation as vulnerable ecological
community 29
Subdivision 2 -- Collapsed ecological communities
31. Listing of collapsed ecological communities 30
32. Criteria for listing as collapsed ecological
community 30
33. Rediscovered ecological communities 30
Division 3 -- Threatening processes
34. Listing of key threatening processes 30
35. Criteria for listing as key threatening process 31
Division 4 -- Listing process
36. Terms used 32
37. Minister may obtain advice on listing decision 32
38. Nominations in respect of certain listings 32
39. Notification of Minister's decision 33
page ii
Biodiversity Conservation Bill 2015
Contents
Part 3 -- Threatened species and
threatened
ecological communities
Division 1 -- Threatened species
40. Minister may authorise taking or disturbance of
threatened species 34
41. Conditions of authorisation 34
42. Governor's approval required in certain cases 36
43. Duty of certain people to report occurrence of
threatened species 36
Division 2 -- Threatened ecological
communities
44. Term used: modify 37
45. Minister may authorise modification of occurrence
of threatened ecological community 38
46. Conditions of authorisation 38
47. Governor's approval required in certain cases 40
48. Modifying occurrence of threatened ecological
community 40
49. Duty of certain people to report occurrence of
threatened ecological community 41
Division 3 -- General provisions
50. Notice to owner and occupier as to presence of
threatened species or threatened ecological
community 42
51. Lodgment of notification with Registrar and
withdrawal of notification 42
52. Duty to notify CEO of change in ownership or
occupation 43
53. Certain visitors to be informed of threatened
species or threatened ecological community 44
Part 4 -- Critical habitat
Division 1 -- Determination of critical habitat
54. Listing of critical habitat 45
55. Criteria for listing as critical habitat 45
56. Consultation 46
57. Register 46
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Biodiversity Conservation Bill 2015
Contents
Division 2 -- Habitat conservation notices
58. Terms used 46
59. Habitat conservation notice 47
60. Persons bound by habitat conservation notice 48
61. Amendment of habitat conservation notice 48
62. Cancellation of habitat conservation notice 49
63. Lodgment of notification with Registrar and
withdrawal of notification 49
64. Habitat conservation notice binding on successive
owners and occupiers 50
65. Contravention of habitat conservation notice 50
66. Duty to notify CEO of change in ownership or
occupation 51
67. Apportionment of costs of complying with habitat
conservation notice 51
Part 5 -- Biodiversity management
programmes
68. Terms used 53
69. Content of biodiversity management programme 53
70. Preparation of draft programme 54
71. Consultation on draft programme 54
72. Submission to Minister 55
73. Approval of biodiversity management programme 55
74. Notice of biodiversity management programme 55
75. Operation of biodiversity management programme 55
76. Publication of biodiversity management
programme 56
77. Review of biodiversity management programme 56
78. Amendment of biodiversity management
programme 56
79. Revocation of biodiversity management
programme 56
80. Public authority to have regard to biodiversity
management programme 57
Part 6 -- Recovery plans and interim
recovery plans
Division 1 -- Preliminary
81. Terms used 58
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Biodiversity Conservation Bill 2015
Contents
82. Content of recovery plan 59
Division 2 -- Approved plans
83. Preparation of draft plan 60
84. Consultation on draft plan 60
85. CEO to publicise draft plan 60
86. Public submissions 61
87. Referral of draft plan to certain persons or bodies 61
88. Submission to Minister 61
89. Approval of plan 62
90. Amendment of approved plan 62
91. Joint recovery plan 63
Division 3 -- Adopted plans
92. Adoption of plan 63
93. CEO to publicise proposed plan 64
94. Public submissions 64
95. Referral of proposed plan to certain persons or
bodies 65
96. Amendment of adopted plan 65
Division 4 -- General provisions for recovery
plans
97. Matters relevant to approval or adoption of
recovery plan 66
98. Notice of recovery plan 67
99. Operation of recovery plan 67
100. Publication of recovery plan 67
101. Review of recovery plan 67
102. Revocation of recovery plan 68
103. Public authority to have regard to recovery plan 68
Division 5 -- Interim recovery plans
104. Interim recovery plan 69
105. Making an interim recovery plan 69
106. Consultation on proposed plan 69
107. Notice of interim recovery plan 70
108. Operation of interim recovery plan 70
109. Publication of interim recovery plan 70
110. Review of interim recovery plan 70
111. Amendment of interim recovery plan 70
112. Revocation of interim recovery plan 71
page v
Biodiversity Conservation Bill 2015
Contents
113. Public authority to have regard to interim recovery
plan 71
Part 7 -- Biodiversity conservation
agreements
114. Minister may enter into biodiversity conservation
agreement 72
115. Content of biodiversity conservation agreement 73
116. Amendment or cancellation of biodiversity
conservation agreement 74
117. Lodgment of notification with Registrar and
withdrawal of notification 75
118. Biodiversity conservation agreement binding on
owners and occupiers 76
119. Duty to notify CEO of change in ownership or
occupation 76
120. Action in respect of money, goods or services
provided under agreement 77
Part 8 -- Biodiversity conservation
covenants
121. Terms used 79
122. Biodiversity conservation covenant 79
123. Consents required 80
124. Persons bound by biodiversity conservation
covenant 80
125. Modification of biodiversity conservation covenant 81
126. Cancellation of biodiversity conservation covenant 81
127. Lodgment of biodiversity conservation covenant
with Registrar 81
128. Instruments relating to modification or cancellation
of biodiversity conservation covenant to be given
to Registrar 82
129. Biodiversity conservation covenant binding on
successive owners 83
130. Contravention of biodiversity conservation
covenant 83
131. Duty to notify CEO of change in ownership or
occupation 83
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Biodiversity Conservation Bill 2015
Contents
Part 9 -- Control of environmental
pests
132. Declaration of environmental pest 85
133. Matters to be considered by Minister 86
134. Environmental pest on CALM Act land 86
135. Environmental pest notice 87
136. Matters relevant to giving environmental pest
notice 87
137. Consultation on proposed measures: land used
solely or principally for agricultural activity 88
138. Persons bound by environmental pest notice 89
139. Amendment or cancellation of environmental pest
notice 89
140. Contravention of environmental pest notice 90
141. Duty to notify CEO of change in ownership or
occupation 90
142. Review by CEO 91
143. Review by State Administrative Tribunal 91
144. Compliance statements 92
Part 10 -- Fauna and flora
Division 1 -- Protection of fauna
Subdivision 1 -- Property in fauna
145. Term used: fauna 93
146. Property in fauna 93
147. Property remains vested in the State in certain
cases 93
148. No compensation 94
Subdivision 2 -- Protection provisions
149. Taking fauna other than threatened fauna or
managed fauna 94
150. Taking threatened fauna 95
151. Defences to charges under s. 149 and 150 95
152. Possessing fauna 96
153. Disturbing fauna 97
154. Offender liable to punishment for certain offences
despite The Criminal Code s. 11 99
155. Feeding fauna 99
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Biodiversity Conservation Bill 2015
Contents
156. Use of prohibited device or prohibited method
when taking or disturbing fauna 99
157. Dealing in fauna 99
158. Processing fauna 100
159. Importing fauna 101
160. Exporting fauna 101
161. Injured or abandoned fauna 102
162. Releasing fauna 103
163. Managed fauna 104
164. Regulations: stranded or distressed fauna 105
165. Humane destruction of fauna 106
Division 2 -- Protection of flora
Subdivision 1 -- Property in flora
166. Term used: flora 106
167. Property in flora 106
168. Property remains vested in the State in certain
cases 106
169. Flora propagated from taken flora 107
170. No compensation 107
Subdivision 2 -- Protection provisions
171. Taking flora 107
172. Taking sandalwood 108
173. Taking threatened flora 109
174. Defences to charges under s. 171, 172 and 173 110
175. Use of prohibited device or prohibited method
when taking flora 110
176. Supplying flora 111
177. Dealing in flora 111
178. Processing flora 112
179. Exporting flora 112
180. Additional penalty for offence involving
sandalwood 113
Division 3 -- Taking or disturbance by
Aboriginal people
181. Terms used 113
182. Taking or disturbance for Aboriginal customary
purposes 114
183. Possessing fauna taken for Aboriginal customary
purposes 116
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Biodiversity Conservation Bill 2015
Contents
184. Selling fauna or flora taken for Aboriginal
customary purposes 116
185. Permission given by exclusive native title holder to
take or disturb fauna 117
186. Regulations: restriction or exclusion of s. 182(2)
or (3) 117
Division 4 -- Other matters
187. Orders limiting quantity of sandalwood taken 118
188. Regulations: charges for fauna and flora 119
189. Operation of The Criminal Code s. 417 not
affected 120
Part 11 -- Nature-based tourism and
recreation
190. Terms used 121
191. Issue of codes of practice 121
192. Approval of codes of practice 121
193. Regulations: nature-based tourism and recreation 122
194. Consultation 123
Part 12 -- Inspection and compliance
Division 1 -- Preliminary
195. Terms used 124
196. Reasonably suspects: meaning 125
197. Thing relevant to an offence: meaning 125
Division 2 -- Inspection and related functions
198. Purposes for which inspection may be carried out 125
199. Power to enter places 126
200. Power to enter includes power to enter some other
places 126
201. Power to stop and enter vehicles and ancillary
powers 127
202. Application of CI Act s. 31 127
203. Other powers related to inspection 128
204. Obtaining records 129
205. Directions 130
206. Seizure of thing relevant to an offence 132
207. Dealing with seized thing 133
208. Dealing with seized live fauna 134
209. Forensic examination 134
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Biodiversity Conservation Bill 2015
Contents
Division 3 -- Entry warrants
210. Applying for entry warrant 135
211. Making an application 135
212. Further provisions relating to application for entry
warrant 136
213. Issuing entry warrant 137
214. Effect of entry warrant 138
215. Execution of entry warrant 138
Division 4 -- Remedial action
216. Term used: relevant instrument 138
217. CEO may take remedial action 139
218. Notice required before remedial action 140
219. Recovery of costs of remedial action 140
Division 5 -- Other provisions
220. Time and place for compliance with direction 140
221. Direction may be given orally or in writing 141
222. Exercise of power may be recorded 141
223. Assistance to exercise powers 141
224. Use of force 142
225. Evidence obtained improperly 142
226. Compliance with directions 143
227. False or misleading information 143
228. Obstruction of wildlife officer 144
229. Self-incrimination not an excuse 144
230. Orders for forfeiture or disposal of seized things 145
231. Application of Criminal and Found Property
Disposal Act 2006 145
Part 13 -- Legal proceedings
Division 1 -- General provisions relating to
offences
232. Who can commence prosecution 146
233. Time for commencing prosecution 146
234. Attempt, incitement or accessory after the fact 146
235. Penalties for continuing offences 147
236. Court may cancel or suspend licence 147
Division 2 -- Responsibility of certain persons
237. Liability of officers of body corporate for offence
by body 147
page x
Biodiversity Conservation Bill 2015
Contents
238. Further provisions relating to liability of officers of
body corporate 148
239. Liability of partners 149
240. Liability of principals for offence by agent 150
241. Liability of employers for offence by employee 151
Division 3 -- Remediation orders
242. Terms used 152
243. Making a remediation order 152
244. Limitation on making remediation order: damage
to habitat on private land 153
245. Enforcement of remediation order under
s. 243(1)(a) 153
246. Enforcement of remediation order under
s. 243(1)(b) 153
Division 4 -- Evidentiary provisions
247. Terms used 154
248. Presumption as to identity of alleged offender 154
249. Presumption as to place of offence 154
250. Evidence as to authority or status 154
251. Evidence as to type of organism, species,
ecological community or habitat 155
252. Evidence of scientific matters 156
253. Evidence as to authorisations, notices and other
documents 157
254. Provisions in addition to Evidence Act 1906 158
Part 14 -- Regulations, orders and
guidelines
Division 1 -- Regulations
255. Regulations: general power 159
256. Regulations: licensing 159
257. Regulations may adopt codes or legislation 161
Division 2 -- Orders
258. Orders made by Minister 162
259. Certain orders subject to disallowance 162
Division 3 -- Guidelines
260. Guidelines about listing 163
261. Other guidelines 164
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Biodiversity Conservation Bill 2015
Contents
262. Publication, amendment and revocation of
guidelines 164
263. Guidelines to be taken into account 164
264. Status of guidelines 165
Part 15 -- Miscellaneous
Division 1 -- Documents
265. Giving documents to CEO 166
266. Giving documents generally 166
267. Giving documents to owner or occupier of land 167
268. Giving certain notices 168
269. Time when document given 168
270. Defects in document 169
Division 2 -- Other matters
271. Exemptions from Act 169
272. Resolution of matters relating to powers and duties
of public authorities 170
273. Protection from liability for wrongdoing 171
274. Information sharing 171
275. Confidentiality 174
276. Certain information may be kept confidential 174
277. Review of Act 175
Part 16 -- Repeals and transitional
provisions
Division 1 -- Repeal of Wildlife Conservation
Act 1950
Subdivision 1 -- Repeals
278. Wildlife Conservation Act 1950 repealed 176
279. Subsidiary legislation repealed 176
Subdivision 2 -- Transitional provisions
280. Consents under Wildlife Conservation Act 1950
s. 23F 176
Division 2 -- Repeal of Sandalwood Act 1929
Subdivision 1 -- Repeals
281. Sandalwood Act 1929 repealed 177
282. Sandalwood Regulations 1993 repealed 177
Subdivision 2 -- Transitional provisions
283. Licences under Sandalwood Act 1929 177
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Biodiversity Conservation Bill 2015
Contents
Division 3 -- Transitional regulations
284. Transitional regulations 177
Division 4 -- General
285. Interpretation Act 1984 not affected 179
Part 17 -- Consequential
amendments to other Acts
Division 1 -- Conservation and Land
Management Act 1984 amended
286. Act amended 180
287. Long title amended 180
288. Section 3 amended 180
289. Section 13A amended 181
290. Section 13B amended 181
291. Section 19 amended 181
292. Section 33 amended 182
293. Section 34A amended 185
294. Section 37 amended 186
295. Section 45 amended 186
296. Section 46 amended 187
297. Section 48 amended 187
298. Section 56 amended 187
299. Section 68 replaced 188
68. Biodiversity Conservation Account 188
300. Section 87 amended 188
301. Section 101B amended 189
302. Section 103A amended 189
303. Section 106 amended 189
304. Section 121 amended 190
305. Section 124 amended 190
306. Section 125 replaced 190
125. Application of Criminal Investigation
Act 2006 and Criminal Investigation
(Identifying People) Act 2002 to
enforcement officers 190
126A. Department a prescribed agency for the
Criminal and Found Property Disposal
Act 2006 192
307. Section 127 amended 192
308. Section 132 amended 193
309. Section 133 amended 193
page xiii
Biodiversity Conservation Bill 2015
Contents
Division 2 -- Other Acts amended
310. Animal Welfare Act 2002 amended 194
311. Biosecurity and Agriculture Management Act 2007
amended 196
312. Bush Fires Act 1954 amended 197
313. Constitution Acts Amendment Act 1899 amended 197
314. Environmental Protection Act 1986 amended 197
315. Financial Management Act 2006 amended 198
316. Firearms Act 1973 amended 199
317. Forest Products Act 2000 amended 199
318. Land Administration Act 1997 amended 199
319. Land Tax Assessment Act 2002 amended 200
42A. Land under biodiversity conservation
covenant, exemption for 200
320. Soil and Land Conservation Act 1945 amended 200
Schedule 1 -- Matters for which
regulations may be made
Defined terms
page xiv
Western Australia
LEGISLATIVE ASSEMBLY
(As amended during consideration in detail)
Biodiversity Conservation Bill 2015
A Bill for
An Act to provide for --
• the conservation and protection of biodiversity and biodiversity
components in Western Australia; and
• the ecologically sustainable use of biodiversity components in
Western Australia; and
• the repeal of the Wildlife Conservation Act 1950 and the
Sandalwood Act 1929; and
• consequential amendments to other Acts,
and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Biodiversity Conservation Bill 2015
Part 1 Preliminary
s. 1
1 Part 1 -- Preliminary
2 1. Short title
3 This is the Biodiversity Conservation Act 2015.
4 2. Commencement
5 This Act comes into operation as follows --
6 (a) sections 1 and 2 -- on the day on which this Act
7 receives the Royal Assent;
8 (b) the rest of the Act -- on a day fixed by proclamation,
9 and different days may be fixed for different provisions.
10 3. Objects of Act
11 (1) The objects of this Act are --
12 (a) to conserve and protect biodiversity and biodiversity
13 components in the State; and
14 (b) to promote the ecologically sustainable use of
15 biodiversity components in the State.
16 (2) In the pursuit of the objects of this Act, regard must be had to
17 the principles of ecologically sustainable development set out in
18 section 4.
19 4. Principles of ecologically sustainable development
20 The principles of ecologically sustainable development are as
21 follows --
22 (a) decision-making processes should effectively integrate
23 both long-term and short-term economic, environmental,
24 social and equitable considerations;
25 (b) if there are threats of serious or irreversible
26 environmental damage, lack of full scientific certainty
27 should not be used as a reason for postponing measures
28 to prevent environmental degradation;
page 2
Biodiversity Conservation Bill 2015
Preliminary Part 1
s. 5
1 (c) the present generation should ensure that the health,
2 diversity and productivity of the environment is
3 maintained or enhanced for the benefit of future
4 generations;
5 (d) the conservation of biodiversity and ecological integrity
6 should be a fundamental consideration in
7 decision-making;
8 (e) improved valuation, pricing and incentive mechanisms
9 should be promoted.
10 5. Terms used
11 (1) In this Act, unless the contrary intention appears --
12 abandoned fauna means fauna that --
13 (a) belongs to a species the juveniles of which are normally
14 cared for by a parent; and
15 (b) is of an age at which it would normally be cared for by a
16 parent; and
17 (c) has been abandoned by its parents;
18 animal means any member, alive or dead, of the animal
19 kingdom (other than a human being) and includes the
20 following --
21 (a) any viable or non-viable progeny, larva, embryo, egg,
22 ovum or sperm of an animal;
23 (b) any part, product or genetic material of an animal from
24 which another animal could be produced;
25 (c) any other part of an animal;
26 (d) the carcass of an animal;
27 annual report, in relation to the Department, means the annual
28 report submitted by the accountable authority of the Department
29 under the Financial Management Act 2006 Part 5;
30 apply, in relation to an identifier, includes to affix, to attach, to
31 implant and to insert;
page 3
Biodiversity Conservation Bill 2015
Part 1 Preliminary
s. 5
1 biodiversity means the variability among living organisms and
2 the ecosystems of which those organisms are a part and includes
3 the following --
4 (a) diversity within native species and between native
5 species;
6 (b) diversity of ecosystems;
7 (c) diversity of other biodiversity components;
8 biodiversity components includes native species, habitats,
9 ecological communities, genes, ecosystems and ecological
10 processes;
11 biodiversity conservation means the conservation and
12 protection of biodiversity and biodiversity components;
13 biodiversity conservation agreement has the meaning given in
14 section 114(1);
15 biodiversity conservation covenant has the meaning given in
16 section 122(1);
17 biodiversity conservation measures includes the following --
18 (a) penalties for offences under this Act;
19 (b) biodiversity management programmes;
20 (c) recovery plans and interim recovery plans;
21 (d) biodiversity conservation agreements;
22 (e) biodiversity conservation covenants;
23 (f) measures in place under Part 9 for the control of
24 environmental pests;
25 (g) measures in place under any other written law that have
26 the effect, whether directly or indirectly, of conserving
27 or protecting biodiversity or biodiversity components,
28 including the following --
29 (i) biosecurity measures;
30 (ii) regulations under the CALM Act or the
31 Environmental Protection Act 1986;
32 (iii) environmental protection policies;
page 4
Biodiversity Conservation Bill 2015
Preliminary Part 1
s. 5
1 (iv) conditions agreed or decided under the
2 Environmental Protection Act 1986 Part IV
3 Division 3;
4 (v) management plans under the Fish Resources
5 Management Act 1994 and measures under that
6 Act relating to the control or management of
7 exotic fish, noxious fish or biological threats;
8 (vi) State planning policies under the Planning and
9 Development Act 2005;
10 biodiversity management programme means a biodiversity
11 management programme approved under section 73(1);
12 biological resources includes biochemical substances, genetic
13 resources, organisms, populations and any other biotic
14 component of an ecosystem with actual or potential use or value
15 for humanity;
16 bioprospecting activity means an activity involving or related to
17 the taking of fauna or flora for the purposes of identifying,
18 extracting or recovering biological resources;
19 biosecurity measures means measures under the Biosecurity
20 and Agriculture Management Act 2007 for the control of
21 declared pests including the following --
22 (a) requirements or restrictions imposed by Part 2 of
23 that Act;
24 (b) pest control notices, pest exclusion notices and pest
25 keeping notices under Part 2 of that Act;
26 (c) management plans under Part 2 of that Act;
27 (d) regulations under that Act relating to the keeping,
28 breeding, cultivation or supply of declared pests;
29 (e) the terms and conditions of authorisations under that Act
30 relating to the keeping, breeding, cultivation or supply
31 of declared pests;
32 business day means a day that is not a Saturday, Sunday or
33 public holiday;
page 5
Biodiversity Conservation Bill 2015
Part 1 Preliminary
s. 5
1 CALM Act means the Conservation and Land Management
2 Act 1984;
3 CALM Act land means each of the following categories of
4 land --
5 (a) land, or land and waters, to which the CALM Act
6 applies under the CALM Act section 5;
7 (b) section 8A land as defined in the CALM Act section 3;
8 (c) section 8C land as defined in the CALM Act section 3;
9 (d) land owned by, vested in, or under the care, control and
10 management of, the Executive Body as defined in the
11 CALM Act section 3, whether solely or jointly with
12 another body;
13 (e) land to which the CALM Act section 131 applies;
14 CALM Act officer means --
15 (a) a wildlife officer; or
16 (b) a forest officer as defined in the CALM Act section 3; or
17 (c) a ranger as defined in the CALM Act section 3; or
18 (d) a conservation and land management officer as defined
19 in the CALM Act section 3;
20 capture, in relation to fauna, includes to catch, to gather, to trap,
21 to restrain and to remove;
22 carcass includes part of a carcass;
23 CEO has the meaning given in the CALM Act section 3;
24 cetacean means a member of the sub-order Mysticeti or
25 Odontoceti of the Order Cetacea;
26 CI Act means the Criminal Investigation Act 2006;
27 class --
28 (a) in relation to animals, means any grouping of animals;
29 and
30 (b) in relation to plants, means any grouping of plants;
page 6
Biodiversity Conservation Bill 2015
Preliminary Part 1
s. 5
1 collapsed ecological community means an ecological
2 community that is listed as a collapsed ecological community
3 under section 31(1);
4 commercial purpose means the purpose of sale or any other
5 purpose that is directed to financial gain or reward;
6 Commission has the meaning given in the CALM Act section 3;
7 condition includes a limitation or restriction;
8 conserve includes to maintain and to restore;
9 container includes the following --
10 (a) a case, box, bag, wrapper or material of any kind used or
11 intended to be used to cover, contain or package
12 something;
13 (b) a bulk container, or any means of bulk transport, used or
14 intended to be used to cover, contain or package
15 something;
16 contravene includes to fail to comply with;
17 control, in relation to an environmental pest or other organism,
18 includes the following --
19 (a) to eradicate;
20 (b) to destroy;
21 (c) to prevent the presence or spread of;
22 (d) to manage;
23 (e) to examine or test for;
24 (f) to survey for or monitor the presence or spread of;
25 (g) to treat;
26 critical habitat means habitat that is listed as critical habitat
27 under section 54(1);
28 critically endangered ecological community means a
29 threatened ecological community that is listed in the category of
30 critically endangered ecological community under
31 section 27(1)(a);
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Biodiversity Conservation Bill 2015
Part 1 Preliminary
s. 5
1 critically endangered species means a threatened species that is
2 listed in the category of critically endangered species under
3 section 19(1)(a);
4 Crown land has the meaning given in the Land Administration
5 Act 1997 section 3(1);
6 cultivated flora means flora that has been intentionally sown,
7 planted or propagated unless --
8 (a) it has been sown, planted or propagated as required
9 under this Act or another written law; or
10 (b) it is of a class declared by the regulations to be excluded
11 from this definition;
12 declared pest has the meaning given in the Biosecurity and
13 Agriculture Management Act 2007 section 6;
14 Department has the meaning given in the CALM Act section 3;
15 disturb --
16 (a) in relation to fauna, includes the following --
17 (i) to chase, drive, follow, harass, herd or hunt fauna
18 by any means;
19 (ii) to apply an identifier to fauna by any means;
20 (iii) to engage in an activity that has the effect,
21 whether directly or indirectly, of altering the
22 natural behaviour of fauna to its detriment;
23 (iv) to cause or permit anything referred to in
24 subparagraph (i), (ii) or (iii) to be done;
25 (b) in relation to flora, includes the following --
26 (i) to engage in an activity that has the effect,
27 whether directly or indirectly, of altering the long
28 term persistence of the flora in its habitat;
29 (ii) to cause or permit an activity referred to in
30 subparagraph (i) to be engaged in;
31 ecological community means a naturally occurring assemblage
32 of organisms that occurs in a particular habitat;
page 8
Biodiversity Conservation Bill 2015
Preliminary Part 1
s. 5
1 ecologically sustainable use, in relation to biodiversity
2 components, means use of the biodiversity components in a way
3 and at a rate that does not lead to the long-term decline of
4 biodiversity, thereby maintaining the potential of the
5 biodiversity components to meet the needs of present and future
6 generations;
7 ecosystem means a dynamic complex of ecological communities
8 and the non-living chemical and physical parts of their
9 environment interacting as a functional unit;
10 endangered ecological community means a threatened
11 ecological community that is listed in the category of
12 endangered ecological community under section 27(1)(b);
13 endangered species means a threatened species that is listed in
14 the category of endangered species under section 19(1)(b);
15 environmental pest means a species in respect of which an
16 order under section 132(1) is in force;
17 environmental pest notice has the meaning given in
18 section 135(2);
19 environmental protection policy means an approved policy as
20 defined in the Environmental Protection Act 1986 section 3(1);
21 EPBC Act means the Environment Protection and Biodiversity
22 Conservation Act 1999 (Commonwealth);
23 exclusive economic zone has the meaning given in the Seas and
24 Submerged Lands Act 1973 (Commonwealth) section 3;
25 export means to take out of the State and includes the
26 following --
27 (a) to offer to export;
28 (b) to send or deliver for export;
29 (c) to receive, or have in possession, for export;
30 external Territory has the meaning given in the Acts
31 Interpretation Act 1901 (Commonwealth) section 17;
32 extinct species means a native species that is listed as an extinct
33 species under section 23(1);
page 9
Biodiversity Conservation Bill 2015
Part 1 Preliminary
s. 5
1 fauna means --
2 (a) an animal that --
3 (i) belongs to a native species unless the animal is
4 determined by order under section 9(2) not to be
5 fauna for the purposes of this Act; or
6 (ii) is determined by order under section 9(1) to be
7 fauna for the purposes of this Act;
8 or
9 (b) a native species or taxonomic grouping of native species
10 that is determined by order under section 10(1) or (2) to
11 be fauna for the purposes of this Act;
12 fauna processing establishment means a place used to process
13 fauna, other than fish or pearl oyster, for a commercial purpose;
14 fish has the meaning given in the Fish Resources Management
15 Act 1994 section 4(1);
16 flora means --
17 (a) a plant that --
18 (i) belongs to a native species and is indigenous to
19 the State unless the plant is determined by order
20 under section 9(4) not to be flora for the
21 purposes of this Act; or
22 (ii) is determined by order under section 9(3) to be
23 flora for the purposes of this Act;
24 or
25 (b) a native species or taxonomic grouping of native species
26 that is determined by order under section 10(1) or (2) to
27 be flora for the purposes of this Act;
28 flora processing establishment means a place used to process
29 flora for a commercial purpose but does not include a place used
30 solely to process forest products taken under a contract to which
31 the Forest Products Act 2000 Part 8 applies unless those forest
32 products are sandalwood;
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Biodiversity Conservation Bill 2015
Preliminary Part 1
s. 5
1 genetic resources means any material of plant, animal,
2 microbial or other origin that contains functional units of
3 heredity and that has actual or potential value to humanity;
4 habitat means the biophysical medium or media --
5 (a) occupied (continuously, periodically or occasionally) by
6 an organism or group of organisms; or
7 (b) once occupied (continuously, periodically or
8 occasionally) by an organism, or group of organisms,
9 and into which organisms of that kind have the potential
10 to be reintroduced;
11 habitat conservation notice has the meaning given in
12 section 59(1);
13 identifier means a tag, mark, brand, electronic device, or other
14 thing of a prescribed kind, designed or used to identify, track or
15 trace an organism;
16 import means to bring into the State;
17 injured fauna means fauna that is injured, sick or diseased;
18 interim recovery plan means an interim recovery plan made
19 under section 105;
20 key threatening process means a threatening process that is
21 listed as a key threatening process under section 34(1);
22 label means to mark a package, container or other thing to
23 identify it or its contents by attaching to it or inserting in it a tag,
24 mark, stamp or written statement;
25 land has the meaning given in the Land Administration
26 Act 1997 section 3(1);
27 lawful activity has the meaning given in section 6;
28 lawful authority has the meaning given in section 7(2);
29 licence means a licence granted under the regulations;
30 managed fauna means fauna prescribed or of a class prescribed
31 by regulations referred to in section 163(1) as managed fauna
32 for the purposes of the section in which the term is used;
page 11
Biodiversity Conservation Bill 2015
Part 1 Preliminary
s. 5
1 ministerial guidelines means guidelines issued under
2 section 260;
3 mobile home means a vehicle that --
4 (a) is ordinarily used for human habitation; and
5 (b) is permanently or semi-permanently stationary in a
6 single location;
7 native species has the meaning given in section 8(2);
8 obstruct includes to delay, to hinder and to resist;
9 occupier, in relation to land, means a person who is in
10 occupation or control of the land, or is entitled to be in
11 occupation or control of the land, whether or not the person
12 owns the land;
13 organism means a life form, other than a human being, whether
14 alive or not and includes part of such a life form and the genetic
15 material of such a life form;
16 owner --
17 (a) in relation to private land, means --
18 (i) a person who is for the time being registered
19 under the Transfer of Land Act 1893 as
20 proprietor of an estate in fee simple in the land;
21 or
22 (ii) a person who is for the time being the holder of
23 the freehold in the land as evidenced by a
24 memorial that is registered under the
25 Registration of Deeds Act 1856; or
26 (iii) an executor or administrator of, or a person
27 appointed under a written law to act on behalf of,
28 a person referred to in subparagraph (i) or (ii); or
29 (iv) an agent or attorney of a person referred to in
30 subparagraph (i) or (ii); or
31 (v) a mortgagee in possession of the land;
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Biodiversity Conservation Bill 2015
Preliminary Part 1
s. 5
1 (b) in relation to Crown land, means the public authority
2 that has the care, control or management of the land or,
3 if there is no such public authority, the State;
4 part, in relation to an animal or carcass, includes the bodily
5 fluid, bone, chitin, exoskeleton, feathers, flesh, fur, hide, organs,
6 pelage, scale, shell, skin, teeth, tissue and viscera of the animal
7 or carcass;
8 pearl oyster has the meaning given in the Pearling Act 1990
9 section 3(1);
10 place means any land, building, structure, tent or mobile home
11 or a part of any land, building, structure, tent or mobile home;
12 plant means any member, alive or dead, of the plant kingdom or
13 the fungus kingdom and includes the following --
14 (a) any viable or non-viable ovule, seed, pollen or spore of a
15 plant;
16 (b) any part, product or genetic material of a plant from
17 which another plant could be produced;
18 (c) any other part of a plant;
19 potential carrier means --
20 (a) any thing that is capable of carrying an environmental
21 pest; or
22 (b) any thing that is capable of carrying anything else that is
23 capable of carrying an environmental pest;
24 prescribed means prescribed by regulations made under this
25 Act;
26 private land means alienated land as defined in the Land
27 Administration Act 1997 section 3(1);
28 process --
29 (a) in relation to fauna, means to cut, skin, treat, freeze,
30 chill, can, cure, pack or preserve;
31 (b) in relation to flora, means to obtain or produce a thing or
32 substance of a prescribed kind from flora using a
33 prescribed method;
page 13
Biodiversity Conservation Bill 2015
Part 1 Preliminary
s. 5
1 prohibited device means --
2 (a) a thing or substance of a kind prescribed as a prohibited
3 device; or
4 (b) a thing or substance that is used in a manner other than
5 that prescribed for its use;
6 prohibited method means --
7 (a) a method of a kind prescribed as a prohibited method; or
8 (b) a method that is used in a manner other than that
9 prescribed for its use;
10 public authority means --
11 (a) a Minister of the State; or
12 (b) an agency or an organisation as those terms are defined
13 in the Public Sector Management Act 1994 section 3(1);
14 or
15 (c) a local government or a regional local government; or
16 (d) a body, whether incorporated or not, or the holder of an
17 office, that is established or continued for a public
18 purpose under a written law and that, under the authority
19 of a written law, performs a statutory function on behalf
20 of the State;
21 record means any record of information, irrespective of how the
22 information is recorded or stored or able to be recovered and
23 includes the following --
24 (a) any thing from which images, sounds or writings can be
25 reproduced, with or without the aid of anything else;
26 (b) any thing on which information is recorded or stored,
27 whether electronically, magnetically, mechanically or by
28 some other means;
29 recovery plan means --
30 (a) a recovery plan approved under section 89(1); or
31 (b) a plan adopted as a recovery plan under section 92(1);
page 14
Biodiversity Conservation Bill 2015
Preliminary Part 1
s. 5
1 Registrar --
2 (a) in relation to land that is under the operation of the
3 Transfer of Land Act 1893, means the Registrar of Titles
4 under that Act;
5 (b) in relation to land that is alienated from the Crown but is
6 not under the operation of the Transfer of Land
7 Act 1893, means the Registrar of Deeds and Transfers
8 under the Registration of Deeds Act 1856;
9 remedial action has the meaning given in section 217(1);
10 sandalwood means a plant that belongs to the species Santalum
11 spicatum or to another species of flora prescribed for the
12 purposes of this definition;
13 self-governing Territory has the meaning given in the
14 EPBC Act section 528;
15 specially protected fauna means fauna that belongs to a
16 specially protected species;
17 specially protected flora means flora that belongs to a specially
18 protected species;
19 specially protected species means a native species that is listed
20 as a specially protected species under section 13(1);
21 species --
22 (a) means a group of organisms that --
23 (i) interbreed to produce fertile offspring; or
24 (ii) possess common characteristics derived from a
25 common gene pool,
26 and
27 (b) includes --
28 (i) a taxonomically separate population of a species,
29 being a population that is characterised by
30 morphological or other biological differences
31 from other populations of that species; and
page 15
Biodiversity Conservation Bill 2015
Part 1 Preliminary
s. 5
1 (ii) a distinct population of organisms that the
2 Minister has determined by order under
3 section 9(5) to be a species for the purposes of
4 this Act;
5 State agreement means an agreement to which the State is a
6 party and which is authorised, ratified or approved by a written
7 law;
8 supply includes the following --
9 (a) to sell;
10 (b) to send or deliver for the purpose of sale or on sale;
11 (c) to receive, or have in possession, for the purpose of sale;
12 (d) to dispose of under a hire-purchase agreement;
13 (e) to give;
14 (f) to send or deliver for the purpose of giving;
15 (g) to receive, or have in possession, for the purpose of
16 giving;
17 (h) to cause or permit anything referred to in
18 paragraph (a), (b), (c), (d), (e), (f) or (g) to be done;
19 (i) to offer to do anything referred to in
20 paragraph (a), (b), (c), (d), (e), (f) or (g);
21 take --
22 (a) in relation to fauna, includes the following --
23 (i) to kill, injure, harvest or capture fauna by any
24 means;
25 (ii) to cause or permit anything referred to in
26 subparagraph (i) to be done;
27 (b) in relation to flora, includes the following --
28 (i) to gather, pluck, cut, pull up, destroy, dig up,
29 remove, harvest or damage flora by any means;
30 (ii) to cause or permit anything referred to in
31 subparagraph (i) to be done;
page 16
Biodiversity Conservation Bill 2015
Preliminary Part 1
s. 5
1 threatened ecological community means an ecological
2 community that --
3 (a) is listed as a threatened ecological community under
4 section 27(1); or
5 (b) is to be regarded as a threatened ecological community
6 under section 33;
7 threatened fauna means fauna that belongs to a threatened
8 species;
9 threatened flora means flora that belongs to a threatened
10 species;
11 threatened species means a native species that --
12 (a) is listed as a threatened species under section 19(1); or
13 (b) is to be regarded as a threatened species under
14 section 26(2);
15 threatening process means a process that threatens, or may
16 threaten, the survival, abundance or evolutionary development
17 of a native species or ecological community;
18 treat includes to disinfect, to disinfest, to clean, to vaccinate or
19 apply other prophylactic measures, and to isolate;
20 vehicle means any thing capable of transporting people or things
21 by air, road, rail or water, and it does not matter how the thing is
22 moved or propelled;
23 vulnerable ecological community means a threatened
24 ecological community that is listed in the category of vulnerable
25 ecological community under section 27(1)(c);
26 vulnerable species means a threatened species that is listed in
27 the category of vulnerable species under section 19(1)(c);
28 wildlife officer has the meaning given in the CALM Act
29 section 3.
30 (2) Despite the definitions of occupier and owner in subsection (1),
31 neither the CEO nor the Executive Body (as defined in the
32 CALM Act section 3) is to be regarded as an occupier or owner
33 of land for the purposes of this Act.
page 17
Biodiversity Conservation Bill 2015
Part 1 Preliminary
s. 6
1 6. Lawful activity
2 For the purposes of this Act, but without limiting what may
3 constitute a lawful activity, a reference in this Act to a lawful
4 activity includes --
5 (a) clearing that does not involve an offence under the
6 Environmental Protection Act 1986 section 51C; and
7 (b) an activity prescribed or of a class prescribed for the
8 purposes of this section.
9 7. Lawful authority
10 (1) In this section --
11 relevant authorisation means a licence, permit, approval,
12 consent, registration, exemption or other authority issued,
13 granted, conferred or given under --
14 (a) this Act; or
15 (b) the CALM Act; or
16 (c) the Environmental Protection Act 1986; or
17 (d) the Fish Resources Management Act 1994; or
18 (e) the Pearling Act 1990; or
19 (f) an enactment prescribed for the purposes of this
20 definition.
21 (2) For the purposes of this Act, but without limiting what may
22 constitute lawful authority, there is lawful authority for an
23 activity if --
24 (a) the activity --
25 (i) is authorised by a relevant authorisation; or
26 (ii) is otherwise authorised or required under a
27 written law or State agreement;
28 and
29 (b) all requirements and conditions that apply to or in
30 relation to the activity are complied with, whether those
31 requirements and conditions are imposed under the
page 18
Biodiversity Conservation Bill 2015
Preliminary Part 1
s. 8
1 relevant authorisation, written law or State agreement
2 referred to in paragraph (a) or otherwise.
3 8. Native species
4 (1) In this section --
5 coastal sea of Australia or an external Territory has the meaning
6 given in the Acts Interpretation Act 1901 (Commonwealth)
7 section 15B(4);
8 continental shelf means the continental shelf (as defined in the
9 Seas and Submerged Lands Act 1973 (Commonwealth)
10 section 3) of Australia including its external Territories.
11 (2) For the purposes of this Act, a native species is a species --
12 (a) that is indigenous to Australia or an external Territory;
13 or
14 (b) that is indigenous to the sea-bed of the coastal sea of
15 Australia or an external Territory; or
16 (c) that is indigenous to the continental shelf; or
17 (d) that is indigenous to the exclusive economic zone; or
18 (e) members of which periodically or occasionally visit --
19 (i) Australia or an external Territory; or
20 (ii) the exclusive economic zone;
21 or
22 (f) that was present in Australia or an external Territory
23 before 1400.
24 9. Determination as to fauna, flora or species
25 (1) The Minister may, by order, determine that an animal, other
26 than an animal that belongs to a native species, is fauna for the
27 purposes of this Act.
28 (2) The Minister may, by order, determine that an animal that
29 belongs to a native species is not fauna for the purposes of
30 this Act.
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Biodiversity Conservation Bill 2015
Part 1 Preliminary
s. 10
1 (3) The Minister may, by order, determine that a plant, other than a
2 plant that belongs to a native species and is indigenous to the
3 State, is flora for the purposes of this Act.
4 (4) The Minister may, by order, determine that a plant that belongs
5 to a native species and is indigenous to the State is not flora for
6 the purposes of this Act.
7 (5) The Minister may, by order, determine that a distinct population
8 of organisms is a species for the purposes of this Act.
9 (6) An order made under this section may provide that it applies to
10 the whole of the State, a specified part of the State or specified
11 parts of the State.
12 (7) Section 258 applies to an order made under this section.
13 10. Determination of certain native species or taxonomic
14 groupings as fauna or flora
15 (1) The Minister may, by order, determine that a particular native
16 species, or taxonomic grouping of native species, that is
17 classified as belonging to a kingdom other than the animal
18 kingdom, the plant kingdom or the fungus kingdom is either
19 fauna or flora for the purposes of this Act.
20 (2) If it appears to the Minister that according to scientific opinion a
21 particular native species or taxonomic grouping of native
22 species is not classified as belonging to the animal kingdom, the
23 plant kingdom, the fungus kingdom or another kingdom, the
24 Minister may, by order, determine that the species or taxonomic
25 grouping is either fauna or flora for the purposes of this Act.
26 (3) Section 258 applies to an order made under this section.
27 11. Crown bound
28 (1) This Act binds the State and, so far as the legislative power of
29 the State permits, the Crown in all its other capacities.
page 20
Biodiversity Conservation Bill 2015
Preliminary Part 1
s. 12
1 (2) Nothing in this Act makes the State, or the Crown in any of its
2 other capacities, liable to be prosecuted for an offence.
3 12. Application of Act in relation to aquatic matters
4 (1) This Act, other than Part 9, does not apply to or in relation to
5 any fish or pearl oyster that is the subject of --
6 (a) aquaculture, as defined in the Fish Resources
7 Management Act 1994 section 4(1); or
8 (b) commercial fishing, as defined in the Fish Resources
9 Management Act 1994 section 4(1); or
10 (c) recreational fishing, as defined in the Fish Resources
11 Management Act 1994 section 4(1); or
12 (d) hatchery activities, as defined in the Pearling Act 1990
13 section 3(1); or
14 (e) pearling, as defined in the Pearling Act 1990
15 section 3(1).
16 (2) Nothing in subsection (1) affects the application of the
17 CALM Act Part II Division 3.
page 21
Biodiversity Conservation Bill 2015
Part 2 Listing of native species, ecological communities and
threatening processes
Division 1 Native species
s. 13
1 Part 2 -- Listing of native species, ecological
2 communities and threatening processes
3 Division 1 -- Native species
4 Subdivision 1 -- Specially protected species
5 13. Listing of specially protected species
6 (1) The Minister may, by order, list a native species as a specially
7 protected species in --
8 (a) any one or more of the following categories --
9 (i) species of special conservation interest;
10 (ii) migratory species;
11 (iii) cetaceans;
12 (iv) species subject to international agreement;
13 or
14 (b) the category of species otherwise in need of special
15 protection.
16 (2) A native species is not eligible for listing as a specially
17 protected species if it is a threatened species or an extinct
18 species.
19 (3) Section 258 applies to an order made under subsection (1).
20 14. Criteria for categorisation as species of special conservation
21 interest
22 A native species is eligible for listing in the category of species
23 of special conservation interest at a particular time if, at that
24 time --
25 (a) it is of special conservation interest because it --
26 (i) has a naturally low population; or
27 (ii) has a restricted natural range; or
page 22
Biodiversity Conservation Bill 2015
Listing of native species, ecological communities and Part 2
threatening processes
Native species Division 1
s. 15
1 (iii) is subject to or recovering from a significant
2 population decline or reduction in natural range;
3 or
4 (iv) is of special interest to science;
5 and
6 (b) in the opinion of the Minister --
7 (i) the penalty for an offence under this Act
8 involving the taking of the species is not likely to
9 effectively deter its taking; and
10 (ii) taking of the species may result in undue
11 depletion of the species;
12 and
13 (c) listing in that category is otherwise in accordance with
14 the ministerial guidelines.
15 15. Criteria for categorisation as migratory species
16 (1) A native species is eligible for listing in the category of
17 migratory species at a particular time if, at that time --
18 (a) either --
19 (i) members of the species periodically or
20 occasionally visit Australia or an external
21 Territory or the exclusive economic zone; or
22 (ii) the species is the subject of an international
23 agreement that relates to the protection of
24 migratory species and that binds the
25 Commonwealth;
26 and
27 (b) listing in that category is otherwise in accordance with
28 the ministerial guidelines.
29 (2) If a native species is listed in the category of migratory species
30 on the basis of subsection (1)(a)(ii), the listing must specify the
31 relevant international agreement.
page 23
Biodiversity Conservation Bill 2015
Part 2 Listing of native species, ecological communities and
threatening processes
Division 1 Native species
s. 16
1 16. Criteria for categorisation as cetaceans
2 A native species is eligible for listing in the category of
3 cetaceans at a particular time if, at that time --
4 (a) it is a cetacean; and
5 (b) listing in that category is otherwise in accordance with
6 the ministerial guidelines.
7 17. Criteria for categorisation as species subject to international
8 agreement
9 (1) A native species is eligible for listing in the category of species
10 subject to international agreement at a particular time if, at that
11 time --
12 (a) the species is the subject of an international agreement
13 that relates to the provision, coordination or
14 encouragement of special protective measures for the
15 species and that binds the Commonwealth; and
16 (b) listing in that category is otherwise in accordance with
17 the ministerial guidelines.
18 (2) If a native species is listed in the category of species subject to
19 international agreement, the listing must specify the relevant
20 international agreement.
21 18. Criteria for categorisation as species otherwise in need of
22 special protection
23 A native species is eligible for listing in the category of species
24 otherwise in need of special protection at a particular time if, at
25 that time --
26 (a) it is a species for which a need for special protection
27 exists; and
28 (b) it is not eligible for listing in any of the categories
29 referred to in section 13(1)(a); and
30 (c) listing in that category is otherwise in accordance with
31 the ministerial guidelines.
page 24
Biodiversity Conservation Bill 2015
Listing of native species, ecological communities and Part 2
threatening processes
Native species Division 1
s. 19
1 Subdivision 2 -- Threatened species
2 19. Listing of threatened species
3 (1) The Minister may, by order, list a native species as a threatened
4 species in one of the following categories --
5 (a) critically endangered species;
6 (b) endangered species;
7 (c) vulnerable species.
8 (2) A native species is not eligible for listing as a threatened species
9 if it is an extinct species.
10 (3) When deciding whether or not to list a native species as a
11 threatened species or to amend or repeal such a listing, the
12 Minister must have regard only to matters relating to the
13 survival of the species.
14 (4) Section 258 applies to an order made under subsection (1).
15 20. Criteria for categorisation as critically endangered species
16 A native species is eligible for listing in the category of
17 critically endangered species at a particular time if, at that
18 time --
19 (a) it is facing an extremely high risk of extinction in the
20 wild in the immediate future, as determined in
21 accordance with criteria set out in the ministerial
22 guidelines; and
23 (b) listing in that category is otherwise in accordance with
24 the ministerial guidelines.
25 21. Criteria for categorisation as endangered species
26 A native species is eligible for listing in the category of
27 endangered species at a particular time if, at that time --
28 (a) it is not a critically endangered species; and
page 25
Biodiversity Conservation Bill 2015
Part 2 Listing of native species, ecological communities and
threatening processes
Division 1 Native species
s. 22
1 (b) it is facing a very high risk of extinction in the wild in
2 the near future, as determined in accordance with criteria
3 set out in the ministerial guidelines; and
4 (c) listing in that category is otherwise in accordance with
5 the ministerial guidelines.
6 22. Criteria for categorisation as vulnerable species
7 A native species is eligible for listing in the category of
8 vulnerable species at a particular time if, at that time --
9 (a) it is not a critically endangered species or an endangered
10 species; and
11 (b) it is facing a high risk of extinction in the wild in the
12 medium-term future, as determined in accordance with
13 criteria set out in the ministerial guidelines; and
14 (c) listing in that category is otherwise in accordance with
15 the ministerial guidelines.
16 Subdivision 3 -- Extinct species
17 23. Listing of extinct species
18 (1) The Minister may, by order, list a native species as an extinct
19 species in one of the following categories --
20 (a) extinct species;
21 (b) extinct in the wild species.
22 (2) Section 258 applies to an order made under subsection (1).
23 24. Criteria for categorisation as extinct species
24 A native species is eligible for listing in the category of extinct
25 species at a particular time if, at that time --
26 (a) there is no reasonable doubt that the last member of the
27 species has died; and
28 (b) listing in that category is otherwise in accordance with
29 the ministerial guidelines.
page 26
Biodiversity Conservation Bill 2015
Listing of native species, ecological communities and Part 2
threatening processes
Native species Division 1
s. 25
1 25. Criteria for categorisation as extinct in the wild species
2 A native species is eligible for listing in the category of extinct
3 in the wild species at a particular time if, at that time --
4 (a) it is known only to survive in cultivation, in captivity or
5 as a naturalised population well outside its past range;
6 and
7 (b) it has not been recorded in its known habitat or expected
8 habitat, at appropriate seasons, anywhere in its past
9 range, despite surveys over a time frame appropriate to
10 its life cycle and form; and
11 (c) listing in that category is otherwise in accordance with
12 the ministerial guidelines.
13 26. Rediscovered species
14 (1) This section applies to a native species if --
15 (a) it is listed in the category of extinct species and is
16 discovered to be extant; or
17 (b) it is listed in the category of extinct in the wild species
18 and is discovered to be extant in the wild.
19 (2) A native species to which this section applies is to be regarded
20 as a threatened species for the purposes of this Act until --
21 (a) it is listed as a threatened species or a specially protected
22 species; or
23 (b) the Minister declares, by instrument published in the
24 Gazette, that it is not to be so listed.
page 27
Biodiversity Conservation Bill 2015
Part 2 Listing of native species, ecological communities and
threatening processes
Division 2 Ecological communities
s. 27
1 Division 2 -- Ecological communities
2 Subdivision 1 -- Threatened ecological communities
3 27. Listing of threatened ecological communities
4 (1) The Minister may, by order, list an ecological community as a
5 threatened ecological community in one of the following
6 categories --
7 (a) critically endangered ecological community;
8 (b) endangered ecological community;
9 (c) vulnerable ecological community.
10 (2) An ecological community is not eligible for listing as a
11 threatened ecological community if it is a collapsed ecological
12 community.
13 (3) When deciding whether or not to list an ecological community
14 as a threatened ecological community or to amend or repeal
15 such a listing, the Minister must have regard only to matters
16 relating to the survival of the ecological community.
17 (4) An order made under subsection (1) may describe or identify an
18 ecological community by reference to a map or plan held in the
19 Department.
20 (5) Section 258 applies to an order made under subsection (1).
21 28. Criteria for categorisation as critically endangered
22 ecological community
23 An ecological community is eligible for listing in the category
24 of critically endangered ecological community at a particular
25 time if, at that time --
26 (a) it is facing an extremely high risk of becoming eligible
27 for listing as a collapsed ecological community in the
28 immediate future, as determined in accordance with
29 criteria set out in the ministerial guidelines; and
page 28
Biodiversity Conservation Bill 2015
Listing of native species, ecological communities and Part 2
threatening processes
Ecological communities Division 2
s. 29
1 (b) listing in that category is otherwise in accordance with
2 the ministerial guidelines.
3 29. Criteria for categorisation as endangered ecological
4 community
5 An ecological community is eligible for listing in the category
6 of endangered ecological community at a particular time if, at
7 that time --
8 (a) it is not a critically endangered ecological community;
9 and
10 (b) it is facing a very high risk of becoming eligible for
11 listing as a collapsed ecological community in the near
12 future, as determined in accordance with criteria set out
13 in the ministerial guidelines; and
14 (c) listing in that category is otherwise in accordance with
15 the ministerial guidelines.
16 30. Criteria for categorisation as vulnerable ecological
17 community
18 An ecological community is eligible for listing in the category
19 of vulnerable ecological community at a particular time if, at
20 that time --
21 (a) it is not a critically endangered ecological community or
22 an endangered ecological community; and
23 (b) it is facing a high risk of becoming eligible for listing as
24 a collapsed ecological community in the medium-term
25 future, as determined in accordance with criteria set out
26 in the ministerial guidelines; and
27 (c) listing in that category is otherwise in accordance with
28 the ministerial guidelines.
page 29
Biodiversity Conservation Bill 2015
Part 2 Listing of native species, ecological communities and
threatening processes
Division 3 Threatening processes
s. 31
1 Subdivision 2 -- Collapsed ecological communities
2 31. Listing of collapsed ecological communities
3 (1) The Minister may, by order, list an ecological community as a
4 collapsed ecological community.
5 (2) Section 258 applies to an order made under subsection (1).
6 32. Criteria for listing as collapsed ecological community
7 An ecological community is eligible for listing as a collapsed
8 ecological community at a particular time if, at that time --
9 (a) there is no reasonable doubt that the last occurrence of
10 the ecological community has collapsed; or
11 (b) the ecological community has been so extensively
12 modified throughout its range that no occurrence of it is
13 likely to recover --
14 (i) its species composition or structure; or
15 (ii) its species composition and structure.
16 33. Rediscovered ecological communities
17 If a collapsed ecological community is discovered in a state that
18 no longer makes it eligible for listing as a collapsed ecological
19 community, it is to be regarded as a threatened ecological
20 community for the purposes of this Act until --
21 (a) it is listed as a threatened ecological community; or
22 (b) the Minister declares, by instrument published in the
23 Gazette, that it is not to be so listed.
24 Division 3 -- Threatening processes
25 34. Listing of key threatening processes
26 (1) The Minister may, by order, list a threatening process as a key
27 threatening process.
28 (2) Section 258 applies to an order made under subsection (1).
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Biodiversity Conservation Bill 2015
Listing of native species, ecological communities and Part 2
threatening processes
Threatening processes Division 3
s. 35
1 35. Criteria for listing as key threatening process
2 A threatening process is eligible for listing as a key threatening
3 process if --
4 (a) the threatening process --
5 (i) could cause a native species to become eligible
6 for listing as a threatened species; or
7 (ii) could cause an ecological community to become
8 eligible for listing as a threatened ecological
9 community; or
10 (iii) could cause a threatened species or a threatened
11 ecological community to become eligible for
12 listing in another category representing a higher
13 degree of endangerment; or
14 (iv) significantly contributes to the continuing
15 decline of 2 or more threatened species or 2 or
16 more threatened communities; or
17 (v) significantly contributes to a native species
18 becoming eligible for listing as a threatened
19 species in the category of critically endangered
20 species; or
21 (vi) significantly contributes to an ecological
22 community becoming eligible for listing as a
23 threatened ecological community in the category
24 of critically endangered ecological community;
25 or
26 (vii) significantly contributes to the continuing
27 decline of a critically endangered species or a
28 critically endangered ecological community; or
29 (viii) significantly contributes to the degradation of a
30 critical habitat;
31 and
32 (b) listing is otherwise in accordance with the ministerial
33 guidelines.
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Biodiversity Conservation Bill 2015
Part 2 Listing of native species, ecological communities and
threatening processes
Division 4 Listing process
s. 36
1 Division 4 -- Listing process
2 36. Terms used
3 In this Division --
4 listing decision means a decision to do any of the following,
5 whether or not the decision results from a nomination --
6 (a) list a native species as a threatened species;
7 (b) list a native species as an extinct species;
8 (c) list an ecological community as a threatened ecological
9 community;
10 (d) list an ecological community as a collapsed community;
11 (e) list a threatening process as a key threatening process;
12 (f) amend or repeal a listing referred to in any of
13 paragraphs (a) to (e);
14 (g) amend or repeal criteria referred to in
15 section 20(a), 21(b), 22(b), 28(a), 29(b) or 30(b);
16 nomination means a nomination under section 38(1).
17 37. Minister may obtain advice on listing decision
18 (1) Before making a listing decision the Minister may obtain advice
19 from any person considered by the Minister to have expertise
20 relevant to the matter to which the decision relates.
21 (2) The Minister is not bound to accept advice obtained under
22 subsection (1).
23 38. Nominations in respect of certain listings
24 (1) A person may nominate to the Minister --
25 (a) a native species for listing as a threatened species in a
26 particular category; or
27 (b) an amendment to or repeal of the listing of a threatened
28 species; or
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Biodiversity Conservation Bill 2015
Listing of native species, ecological communities and Part 2
threatening processes
Listing process Division 4
s. 39
1 (c) an ecological community for listing as a threatened
2 ecological community in a particular category; or
3 (d) an amendment to or repeal of the listing of a threatened
4 ecological community; or
5 (e) a threatening process for listing as a key threatening
6 process; or
7 (f) an amendment to or repeal of the listing of a key
8 threatening process.
9 (2) A nomination may be made at any time and whether or not
10 nominations have been sought under subsection (4).
11 (3) The Minister may, by written notice given to the person who
12 makes a nomination, reject the nomination if the Minister is
13 satisfied that --
14 (a) it is vexatious, frivolous or not made in good faith; or
15 (b) it has not been made in accordance with any prescribed
16 requirement.
17 (4) The Minister may, by notice published in accordance with the
18 regulations, seek nominations.
19 (5) The regulations may regulate the way in which nominations are
20 made and the form in which they are made.
21 39. Notification of Minister's decision
22 (1) In this section --
23 nomination does not include a nomination rejected under
24 section 38(3).
25 (2) The Minister must give a person who makes a nomination
26 written notice of the Minister's decision on the listing,
27 amendment or repeal the subject of the nomination.
28 (3) If the Minister's decision is that the listing, amendment or
29 repeal is not to be made, the notice must include the reasons for
30 the decision.
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Biodiversity Conservation Bill 2015
Part 3 Threatened species and threatened ecological communities
Division 1 Threatened species
s. 40
1 Part 3 -- Threatened species and threatened
2 ecological communities
3 Division 1 -- Threatened species
4 40. Minister may authorise taking or disturbance of threatened
5 species
6 (1) The Minister may, by instrument, authorise a person (including
7 a public authority) to take or disturb a threatened species.
8 (2) An application for an authorisation must be in a form approved
9 by the CEO.
10 (3) The Minister may, by instrument, amend or revoke an
11 authorisation given under this section.
12 41. Conditions of authorisation
13 (1) In this section --
14 authorisation means an authorisation given under section 40;
15 land of conservation value means land on which there are
16 either or both of the following --
17 (a) a population of the relevant species;
18 (b) relevant habitat;
19 relevant habitat, in relation to an authorisation, means habitat
20 listed as critical habitat under section 54(1) because it is critical
21 to the survival of the threatened species to which the
22 authorisation relates;
23 relevant species, in relation to an authorisation, means the
24 threatened species to which the authorisation relates.
25 (2) The Minister may impose conditions on an authorisation.
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Biodiversity Conservation Bill 2015
Threatened species and threatened ecological communities Part 3
Threatened species Division 1
s. 41
1 (3) Without limiting subsection (2) but subject to subsection (4), the
2 Minister may impose a condition that requires the holder of the
3 authorisation to do one or more of the following --
4 (a) make a monetary contribution towards the purchase of
5 land of conservation value;
6 (b) transfer, lease or otherwise dispose of land of
7 conservation value to a specified person (including the
8 CEO);
9 (c) exchange land of conservation value for other land;
10 (d) enter into an agreement in respect of land of
11 conservation value for the purpose of conserving and
12 protecting the relevant species or relevant habitat;
13 (e) take specified measures on land of conservation value
14 for the purpose of conserving and protecting the relevant
15 species or relevant habitat;
16 (f) provide equipment, facilities, resources or services to
17 assist in the conservation and protection of the relevant
18 species or relevant habitat;
19 (g) conduct or fund surveys, studies or research in relation
20 to the relevant species or relevant habitat;
21 (h) prepare and implement, or fund the preparation and
22 implementation of, plans or schemes for the
23 conservation and protection of the relevant species or
24 relevant habitat;
25 (i) do anything else that is prescribed for the purposes of
26 this subsection.
27 (4) The Minister must not impose a condition described in
28 subsection (3) unless the Minister considers that the condition is
29 necessary for the purpose of mitigating or offsetting the impact
30 that activity carried out under the authorisation is likely to have
31 on the total known population of the relevant species in the
32 State and on relevant habitat.
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Biodiversity Conservation Bill 2015
Part 3 Threatened species and threatened ecological communities
Division 1 Threatened species
s. 42
1 (5) If a condition requires the transfer, lease or other disposal of
2 land of conservation value to the CEO, it is a function of the
3 CEO to acquire, hold, manage and otherwise deal with that land
4 for the purpose of conserving and protecting the relevant species
5 or relevant habitat.
6 (6) An authorisation must set out any conditions imposed on it
7 under this section.
8 42. Governor's approval required in certain cases
9 (1) The Minister must obtain the approval of the Governor before
10 giving an authorisation under section 40 if, in the opinion of the
11 Minister, the proposed taking or disturbance could be expected
12 to result in the threatened species becoming eligible for listing
13 as an extinct species in the near future.
14 (2) Subsection (1) does not apply if the purpose of the proposed
15 taking or disturbance is to establish a breeding colony or a
16 population in cultivation so that the threatened species can be
17 reintroduced into the wild at a later time.
18 (3) If the Governor gives an approval for the purposes of
19 subsection (1) --
20 (a) the Minister must cause a copy of the approval to be laid
21 before each House of Parliament as soon as is
22 practicable after the approval is given; and
23 (b) the Department's annual report must include details of
24 the approval.
25 43. Duty of certain people to report occurrence of threatened
26 species
27 (1) This section applies to a person who is carrying out field work
28 for the purposes of --
29 (a) an assessment under the Environmental Protection
30 Act 1986 Part IV; or
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Biodiversity Conservation Bill 2015
Threatened species and threatened ecological communities Part 3
Threatened ecological communities Division 2
s. 44
1 (b) complying with a requirement under the Environmental
2 Protection Act 1986 section 51E(1)(d) in relation to an
3 application for a clearing permit.
4 (2) If the person, in the course of carrying out the field work, finds
5 an occurrence of a species that is a threatened species on land to
6 which the work relates, the person must report its presence to
7 the CEO.
8 Penalty for this subsection: a fine of $50 000.
9 (3) A report under subsection (2) may be made orally or in writing.
10 (4) It is a defence to a charge of an offence under subsection (2) to
11 prove that the person charged did not know, and could not
12 reasonably have known, that the occurrence found was an
13 occurrence of a threatened species.
14 Division 2 -- Threatened ecological communities
15 44. Term used: modify
16 In this Division --
17 modify, in relation to an occurrence of a threatened ecological
18 community, means to take action that results in --
19 (a) the modification of the occurrence of the threatened
20 ecological community to such an extent that the
21 occurrence is unlikely to recover --
22 (i) its species composition or structure; or
23 (ii) its species composition and structure;
24 or
25 (b) the destruction of the occurrence of the threatened
26 ecological community.
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Biodiversity Conservation Bill 2015
Part 3 Threatened species and threatened ecological communities
Division 2 Threatened ecological communities
s. 45
1 45. Minister may authorise modification of occurrence of
2 threatened ecological community
3 (1) The Minister may, by instrument, authorise a person (including
4 a public authority) to modify an occurrence of a threatened
5 ecological community.
6 (2) An application for authorisation must be in a form approved by
7 the CEO.
8 (3) The Minister may, by instrument, amend or revoke an
9 authorisation given under this section.
10 46. Conditions of authorisation
11 (1) In this section --
12 authorisation means an authorisation given under section 45;
13 land of conservation value means land on which there are
14 either or both of the following --
15 (a) an occurrence of the relevant community;
16 (b) relevant habitat;
17 relevant community, in relation to an authorisation, means the
18 threatened ecological community to which the authorisation
19 relates;
20 relevant habitat, in relation to an authorisation, means habitat
21 listed as critical habitat under section 54(1) because it is critical
22 to the survival of the threatened ecological community to which
23 the authorisation relates.
24 (2) The Minister may impose conditions on an authorisation.
25 (3) Without limiting subsection (2) but subject to subsection (4), the
26 Minister may impose a condition that requires the holder of the
27 authorisation to do one or more of the following --
28 (a) make a monetary contribution towards the purchase of
29 land of conservation value;
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Biodiversity Conservation Bill 2015
Threatened species and threatened ecological communities Part 3
Threatened ecological communities Division 2
s. 46
1 (b) transfer, lease or otherwise dispose of land of
2 conservation value to a specified person (including the
3 CEO);
4 (c) exchange land of conservation value for other land;
5 (d) enter into an agreement in respect of land of
6 conservation value for the purpose of conserving and
7 protecting the relevant community or relevant habitat;
8 (e) take specified measures on land of conservation value
9 for the purpose of conserving and protecting the relevant
10 community or relevant habitat;
11 (f) provide equipment, facilities, resources or services to
12 assist in the conservation and protection of the relevant
13 community or relevant habitat;
14 (g) conduct or fund surveys, studies or research in relation
15 to the relevant community or relevant habitat;
16 (h) prepare and implement, or fund the preparation and
17 implementation of, plans or schemes for the
18 conservation or protection of the relevant community or
19 relevant habitat;
20 (i) do anything else that is prescribed for the purposes of
21 this subsection.
22 (4) The Minister must not impose a condition described in
23 subsection (3) unless the Minister considers that the condition is
24 necessary for the purpose of mitigating or offsetting the impact
25 that activity carried out under the authorisation is likely to have
26 on the total known occurrences of the relevant community in the
27 State and on relevant habitat.
28 (5) If a condition requires the transfer, lease or other disposal of
29 land of conservation value to the CEO, it is a function of the
30 CEO to acquire, hold, manage and otherwise deal with that land
31 for the purpose of conserving and protecting the relevant
32 community or relevant habitat.
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Biodiversity Conservation Bill 2015
Part 3 Threatened species and threatened ecological communities
Division 2 Threatened ecological communities
s. 47
1 (6) An authorisation must set out any conditions imposed on it
2 under this section.
3 47. Governor's approval required in certain cases
4 (1) The Minister must obtain the approval of the Governor before
5 giving an authorisation under section 45 if, in the opinion of the
6 Minister, the proposed modification could be expected to result
7 in the threatened ecological community becoming eligible for
8 listing as a collapsed ecological community in the near future.
9 (2) If the Governor gives an approval for the purposes of
10 subsection (1) --
11 (a) the Minister must cause a copy of the approval to be laid
12 before each House of Parliament as soon as is
13 practicable after the approval is given; and
14 (b) the Department's annual report must include details of
15 the approval.
16 48. Modifying occurrence of threatened ecological community
17 (1) A person must not modify an occurrence of a threatened
18 ecological community unless the person is authorised under
19 section 45 to modify it and complies with the conditions, if any,
20 to which the authorisation is subject.
21 Penalty for this subsection:
22 (a) if the offence involves a critically endangered
23 ecological community -- a fine of $500 000;
24 (b) if the offence involves an endangered ecological
25 community -- a fine of $400 000;
26 (c) if the offence involves a vulnerable ecological
27 community -- a fine of $300 000.
28 (2) It is a defence to a charge of an offence under subsection (1) to
29 prove that --
30 (a) the modification of the occurrence of the threatened
31 ecological community --
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Biodiversity Conservation Bill 2015
Threatened species and threatened ecological communities Part 3
Threatened ecological communities Division 2
s. 49
1 (i) occurred in the course of a lawful activity the
2 sole or dominant purpose of which was not to
3 modify an ecological community; and
4 (ii) could not reasonably have been avoided;
5 and
6 (b) the person charged did not know, and could not
7 reasonably have known, that the occurrence of the
8 threatened ecological community was present.
9 (3) The defence in subsection (2) is not available if the modification
10 of the occurrence of the threatened ecological community has
11 resulted in the threatened ecological community becoming
12 eligible for listing as a collapsed ecological community.
13 49. Duty of certain people to report occurrence of threatened
14 ecological community
15 (1) This section applies to a person who is carrying out field work
16 for the purposes of --
17 (a) an assessment under the Environmental Protection
18 Act 1986 Part IV; or
19 (b) complying with a requirement under the Environmental
20 Protection Act 1986 section 51E(1)(d) in relation to an
21 application for a clearing permit.
22 (2) If the person, in the course of carrying out the field work, finds
23 an occurrence of an ecological community that is a threatened
24 ecological community on land to which the work relates, the
25 person must report its presence to the CEO.
26 Penalty for this subsection: a fine of $50 000.
27 (3) A report under subsection (2) may be made orally or in writing.
28 (4) It is a defence to a charge of an offence under subsection (2) to
29 prove that the person charged did not know, and could not
30 reasonably have known, that the occurrence found was an
31 occurrence of a threatened ecological community.
page 41
Biodiversity Conservation Bill 2015
Part 3 Threatened species and threatened ecological communities
Division 3 General provisions
s. 50
1 Division 3 -- General provisions
2 50. Notice to owner and occupier as to presence of threatened
3 species or threatened ecological community
4 (1) Where it appears to the Minister that there is reasonable
5 evidence that a threatened species or threatened ecological
6 community is present on land, the Minister may give each
7 owner and each occupier of the land a written notice that --
8 (a) specifies the threatened species or threatened ecological
9 community; and
10 (b) contains information to assist the owner or occupier in
11 the identification of the threatened species or threatened
12 ecological community; and
13 (c) specifies the part of the land on which the threatened
14 species or threatened ecological community is believed
15 to be present; and
16 (d) specifies the assistance that may be available to the
17 owner or occupier for the protection of the threatened
18 species or threatened ecological community; and
19 (e) informs the owner or occupier about the effect of
20 section 53 and the right to apply for an exemption from
21 that section under section 271.
22 (2) A notice under subsection (1) remains in force until it is
23 cancelled under subsection (3).
24 (3) The Minister may at any time by written notice given to each
25 owner and each occupier of the land amend or cancel a notice
26 under subsection (1).
27 51. Lodgment of notification with Registrar and withdrawal of
28 notification
29 (1) In this section --
30 section 50 notice means a notice under section 50(1).
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Biodiversity Conservation Bill 2015
Threatened species and threatened ecological communities Part 3
General provisions Division 3
s. 52
1 (2) The CEO may lodge a notification in relation to a section 50
2 notice with the Registrar.
3 (3) If a notification is lodged under subsection (2) and the
4 section 50 notice to which it relates is cancelled, the CEO must
5 apply to the Registrar for the notification to be withdrawn.
6 (4) The following requirements apply to a notification under
7 subsection (2) and an application under subsection (3) --
8 (a) it must be in a form approved by the Registrar;
9 (b) it must be accompanied by any information the Registrar
10 requires;
11 (c) it must be accompanied by any relevant fee payable
12 under the Transfer of Land Act 1893 or another written
13 law.
14 (5) On the lodgment of a notification under subsection (2) or the
15 receipt of an application under subsection (3), the Registrar
16 must make any endorsement or notation the Registrar considers
17 necessary on the certificate of title or other appropriate record in
18 respect of the land to which the notification or application, as
19 the case requires, relates.
20 52. Duty to notify CEO of change in ownership or occupation
21 (1) If a notice is given to an owner of land under section 50(1), the
22 owner must give written notice to the CEO in accordance with
23 subsection (2) if --
24 (a) that person ceases to be an owner of the land; or
25 (b) that person or another person ceases to be an occupier of
26 the land.
27 Penalty for this subsection: a fine of $20 000.
28 (2) The notice must --
29 (a) give details of the change in ownership or occupation of
30 the land including the name and address of the next
31 owner or occupier of the land (if known); and
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Biodiversity Conservation Bill 2015
Part 3 Threatened species and threatened ecological communities
Division 3 General provisions
s. 53
1 (b) be given to the CEO within 60 days after the day on
2 which the change in ownership or occupation of the land
3 occurs.
4 53. Certain visitors to be informed of threatened species or
5 threatened ecological community
6 (1) In this section --
7 relevant community means the threatened ecological
8 community to which the notice or notification referred to in
9 subsection (2)(a) relates;
10 relevant species means the threatened species to which the
11 notice or notification referred to in subsection (2)(a) relates.
12 (2) This section applies to an owner or occupier of land if --
13 (a) a notice is given to the owner or occupier under
14 section 50(1) in respect of the land or a register or
15 record in respect of the land contains an endorsement or
16 notation relating to a notification lodged under
17 section 51(2); and
18 (b) the owner or occupier permits, either generally or in a
19 particular case, another person to have access to the land
20 or knows that another person will have access to the
21 land; and
22 (c) the owner or occupier knows that the activities of the
23 other person on the land are likely to result in --
24 (i) the taking of the relevant species in
25 contravention of section 150(1) or 173(1) or (2);
26 or
27 (ii) the modification of the relevant community in
28 contravention of section 48(1).
29 (3) The owner or occupier must take all steps that are reasonably
30 available to the owner or occupier to inform the other person of
31 the presence of the relevant species or relevant community on
32 the land.
33 Penalty for this subsection: a fine of $20 000.
page 44
Biodiversity Conservation Bill 2015
Critical habitat Part 4
Determination of critical habitat Division 1
s. 54
1 Part 4 -- Critical habitat
2 Division 1 -- Determination of critical habitat
3 54. Listing of critical habitat
4 (1) The Minister may, by order, list habitat as critical habitat.
5 (2) The Minister must not list habitat as critical habitat or amend or
6 repeal such a listing unless --
7 (a) the Minister has had regard to any submission made in
8 response to a notice under section 56(1); and
9 (b) in the case of habitat in Western Australian waters, the
10 listing, amendment or repeal is made with the
11 concurrence of Minister responsible for the
12 administration of the Fish Resources Management
13 Act 1994.
14 (3) In subsection (2)(b) --
15 Western Australian waters means waters that --
16 (a) are within the limits of the State; or
17 (b) are coastal waters of the State as defined in the
18 Off-shore (Application of Laws) Act 1982 section 2.
19 (4) An order made under subsection (1) may describe or identify
20 habitat by reference to a map or plan held in the Department.
21 (5) Section 258 applies to an order made under subsection (1).
22 55. Criteria for listing as critical habitat
23 Habitat is eligible for listing as critical habitat if --
24 (a) it is critical to the survival of a threatened species or a
25 threatened ecological community; and
26 (b) its listing is otherwise in accordance with the ministerial
27 guidelines.
page 45
Biodiversity Conservation Bill 2015
Part 4 Critical habitat
Division 2 Habitat conservation notices
s. 56
1 56. Consultation
2 (1) Before the listing of habitat as critical habitat or the amendment
3 or repeal of such a listing, the CEO must take reasonable steps
4 to give written notice of the proposed listing, amendment or
5 repeal to the owner or occupier of the land on which the habitat
6 is located.
7 (2) A notice under subsection (1) must --
8 (a) contain sufficient information to enable the location and
9 extent of the habitat to be identified; and
10 (b) in the case of a proposed listing, contain information as
11 to the effect of the listing of habitat as critical habitat
12 under this Act; and
13 (c) specify a period within which submissions may be made
14 to the Minister in respect of the proposed listing,
15 amendment or repeal.
16 57. Register
17 (1) The CEO must establish and maintain a register of critical
18 habitats.
19 (2) The regulations may make provision as to the form and content
20 of the register.
21 (3) The register must be made available for public inspection in
22 accordance with the regulations.
23 Division 2 -- Habitat conservation notices
24 58. Terms used
25 In this Division --
26 habitat damage means damage to critical habitat, including the
27 removal or destruction of critical habitat;
28 specified, in relation to a habitat conservation notice, means
29 specified in the notice.
page 46
Biodiversity Conservation Bill 2015
Critical habitat Part 4
Habitat conservation notices Division 2
s. 59
1 59. Habitat conservation notice
2 (1) The CEO may give a written notice (a habitat conservation
3 notice) to a person requiring the person to ensure that habitat
4 damage, or further habitat damage, does not occur on land, if
5 the CEO reasonably believes that --
6 (a) habitat damage is likely to occur on the land; or
7 (b) habitat damage is occurring or has occurred on the land.
8 (2) A habitat conservation notice may be given to one or more of
9 the following people --
10 (a) an owner of the land;
11 (b) an occupier of the land;
12 (c) a person other than an owner or occupier of the land, if
13 the CEO considers that it is practicable for that person to
14 comply with and give effect to the habitat conservation
15 notice.
16 (3) A habitat conservation notice must --
17 (a) specify the name and address of the person to whom it is
18 given; and
19 (b) specify the reason for which it is given; and
20 (c) inform the person to whom it is given that contravention
21 of it could result in a fine, the CEO taking remedial
22 action, or both.
23 (4) A habitat conservation notice may require any person bound by
24 it to take specified measures, within or for the duration of a
25 specified period, for one or more of the following purposes --
26 (a) to repair any habitat damage that has occurred;
27 (b) to re-establish and maintain critical habitat in any area
28 affected by habitat damage to a condition as near as
29 possible to the condition of the critical habitat before the
30 habitat damage occurred;
31 (c) to prevent the erosion, drift or movement of sand, soil,
32 dust or water;
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Biodiversity Conservation Bill 2015
Part 4 Critical habitat
Division 2 Habitat conservation notices
s. 60
1 (d) to ensure that specified land, or a specified watercourse
2 or wetland (as those terms are defined in the Rights in
3 Water and Irrigation Act 1914), where critical habitat is
4 or was located will not be --
5 (i) damaged or detrimentally affected; or
6 (ii) further damaged or detrimentally affected.
7 (5) Before a habitat conservation notice containing a requirement
8 under subsection (4) is given to a person, the CEO must, by
9 written notice given to the person, invite the person to make
10 submissions to the CEO within a period specified in that notice
11 on any matter relevant to the determination of whether or not
12 the person should have to take the measures that the CEO
13 intends to specify in the habitat conservation notice.
14 (6) The CEO must consider any submissions that are received
15 within the period specified under subsection (5).
16 60. Persons bound by habitat conservation notice
17 The following persons are bound by a habitat conservation
18 notice --
19 (a) each person to whom the notice is given;
20 (b) each person who is bound by the notice under
21 section 64.
22 61. Amendment of habitat conservation notice
23 (1) The CEO may, by written notice given to each person bound by
24 a habitat conservation notice, amend the notice by --
25 (a) extending the period within which a requirement
26 contained in it is to be complied with if the CEO is
27 satisfied that the circumstances of the case justify the
28 extension; or
29 (b) removing or amending any requirement contained in it.
30 (2) The CEO must, before exercising the power conferred by
31 subsection (1), give each person bound by the habitat
page 48
Biodiversity Conservation Bill 2015
Critical habitat Part 4
Habitat conservation notices Division 2
s. 62
1 conservation notice a reasonable opportunity to show cause in
2 writing why the power should not be exercised.
3 (3) An opportunity is not a reasonable opportunity for the purposes
4 of subsection (2) if a person is given written notice of the
5 person's right to show cause less than 21 days before the day on
6 which the CEO exercises the power referred to in that
7 subsection.
8 62. Cancellation of habitat conservation notice
9 The CEO may, by written notice given to each person bound by
10 a habitat conservation notice, cancel the notice.
11 63. Lodgment of notification with Registrar and withdrawal of
12 notification
13 (1) If the person, or at least one of the persons, to whom a habitat
14 conservation notice is given under section 59 is an owner or
15 occupier of the land to which the notice relates, the CEO may
16 lodge a notification in relation to the notice with the Registrar.
17 (2) If a notification is lodged under subsection (1) and the habitat
18 conservation notice to which it relates is cancelled, the CEO
19 must apply to the Registrar for the notification to be withdrawn.
20 (3) The following requirements apply to a notification under
21 subsection (1) and an application under subsection (2) --
22 (a) it must be in a form approved by the Registrar;
23 (b) it must be accompanied by any information the Registrar
24 requires;
25 (c) it must be accompanied by any relevant fee payable
26 under the Transfer of Land Act 1893 or another written
27 law.
28 (4) On the lodgment of a notification under subsection (1) or the
29 receipt of an application under subsection (2), the Registrar
30 must make any endorsement or notation the Registrar considers
31 necessary on the certificate of title or other appropriate record in
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Biodiversity Conservation Bill 2015
Part 4 Critical habitat
Division 2 Habitat conservation notices
s. 64
1 respect of the land to which the notification or application, as
2 the case requires, relates.
3 (5) If the CEO lodges a notification under subsection (1) or makes
4 an application under subsection (2), the CEO must give a copy
5 of the notification or application, as the case requires, to the
6 Western Australian Planning Commission established by the
7 Planning and Development Act 2005 section 7(1).
8 64. Habitat conservation notice binding on successive owners
9 and occupiers
10 If a certificate of title or other record in respect of land contains
11 an endorsement or notation relating to a notification lodged
12 under section 63(1), the habitat conservation notice to which the
13 notification relates, as amended from time to time under
14 section 61(1), binds each successive owner or occupier of the
15 land.
16 65. Contravention of habitat conservation notice
17 (1) A person who is bound by a habitat conservation notice must
18 not contravene the notice.
19 Penalty for this subsection:
20 (a) if the habitat conservation notice relates to habitat
21 critical to the survival of a critically endangered
22 species or critically endangered community -- a fine
23 of $500 000;
24 (b) if the habitat conservation notice relates to habitat
25 critical to the survival of an endangered species or
26 endangered ecological community -- a fine of
27 $400 000;
28 (c) if the habitat conservation notice relates to habitat
29 critical to the survival of a vulnerable species or
30 vulnerable ecological community -- a fine of
31 $300 000.
page 50
Biodiversity Conservation Bill 2015
Critical habitat Part 4
Habitat conservation notices Division 2
s. 66
1 (2) If an owner of land and an occupier of land are both bound by a
2 habitat conservation notice, it is a defence to a charge against
3 either of them of an offence under subsection (1) for the person
4 charged to prove that the other person has complied with the
5 notice.
6 66. Duty to notify CEO of change in ownership or occupation
7 (1) If a certificate of title or other record in respect of land contains
8 an endorsement or notation relating to a notification lodged
9 under section 63(1), an owner of the land to which the
10 notification relates must give written notice to the CEO in
11 accordance with subsection (2) if --
12 (a) that person ceases to be an owner of the land; or
13 (b) that person or another person ceases to be an occupier of
14 the land.
15 Penalty for this subsection: a fine of $20 000.
16 (2) The notice must --
17 (a) give details of the change in ownership or occupation of
18 the land, including the name and address of the next
19 owner or occupier of the land (if known); and
20 (b) be given to the CEO within 60 days after the day on
21 which the change in ownership or occupation of the land
22 occurs.
23 67. Apportionment of costs of complying with habitat
24 conservation notice
25 (1) As between an owner and occupier, or successive owners and
26 occupiers, of land, the costs of taking measures on the land in
27 compliance with a habitat conservation notice are to be borne in
28 the proportions determined by the CEO.
29 (2) Subsection (1) --
30 (a) applies whether the measures are taken by an owner or
31 occupier or the CEO; and
page 51
Biodiversity Conservation Bill 2015
Part 4 Critical habitat
Division 2 Habitat conservation notices
s. 67
1 (b) has effect subject to the provisions of any agreement
2 between an owner or occupier or successive owners and
3 occupiers.
page 52
Biodiversity Conservation Bill 2015
Biodiversity management programmes Part 5
s. 68
1 Part 5 -- Biodiversity management programmes
2 68. Terms used
3 In this Part --
4 draft programme means a draft biodiversity management
5 programme prepared under section 70;
6 minor amendment, in relation to a biodiversity management
7 programme, means an amendment that, in the opinion of the
8 CEO, is necessary to correct --
9 (a) a clerical mistake or unintentional error or omission in
10 the programme; or
11 (b) a misdescription of any person, land or thing in the
12 programme.
13 69. Content of biodiversity management programme
14 (1) A biodiversity management programme is a document that
15 provides for the conservation, protection and management of --
16 (a) one or more native species (other than threatened
17 species); or
18 (b) one or more ecological communities (other than
19 threatened ecological communities); or
20 (c) one or more critical habitats; or
21 (d) a combination of such species, communities and
22 habitats.
23 (2) Without limiting subsection (1), a biodiversity management
24 programme may deal with one or more of the following
25 matters --
26 (a) threats to --
27 (i) native species or populations of native species;
28 or
29 (ii) an ecological community; or
30 (iii) a critical habitat;
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Biodiversity Conservation Bill 2015
Part 5 Biodiversity management programmes
s. 70
1 (b) the containment or eradication of species that are not
2 indigenous to the State or the mitigation of the effect of
3 such species;
4 (c) the distribution or population size of native species in
5 the State or a part of the State;
6 (d) research and strategies relevant to biodiversity
7 conservation;
8 (e) the ecologically sustainable use of native species;
9 (f) educational activities that promote an appreciation of
10 biodiversity conservation values including the keeping,
11 breeding and display of native species;
12 (g) the mitigation, containment or eradication of nuisance or
13 damage caused by native species;
14 (h) the mitigation of danger posed by native species;
15 (i) matters that are complementary to a recovery plan,
16 interim recovery plan or biodiversity conservation
17 agreement;
18 (j) nature-based tourism and recreation as defined in
19 section 190.
20 70. Preparation of draft programme
21 The CEO may prepare a draft biodiversity management
22 programme.
23 71. Consultation on draft programme
24 When preparing a draft programme the CEO --
25 (a) must consult with the Commission if the programme
26 relates to land vested in that body or is otherwise
27 relevant to the functions of that body; and
28 (b) may consult with any other person or body who or
29 which appears to the CEO to be likely to be affected in a
30 material way by the programme.
page 54
Biodiversity Conservation Bill 2015
Biodiversity management programmes Part 5
s. 72
1 72. Submission to Minister
2 (1) The CEO may submit a draft programme to the Minister for
3 approval.
4 (2) The draft programme must be accompanied by any submissions
5 received as a result of consultation under section 71.
6 (3) The Minister may require the CEO to modify the draft
7 programme and resubmit it.
8 73. Approval of biodiversity management programme
9 (1) The Minister may approve a draft programme submitted under
10 section 72 as a biodiversity management programme or refuse
11 to approve it.
12 (2) The Minister must not give approval under subsection (1) unless
13 the Minister --
14 (a) is satisfied that the draft programme is consistent with
15 any recovery plan or interim recovery plan that relates to
16 matters dealt with in the draft programme; and
17 (b) has had regard to submissions referred to in
18 section 72(2).
19 74. Notice of biodiversity management programme
20 (1) If the Minister approves a biodiversity management programme
21 under section 73(1), the CEO must cause notice of the
22 programme to be published in the Gazette.
23 (2) The notice must specify where copies of the biodiversity
24 management programme may be inspected and obtained.
25 75. Operation of biodiversity management programme
26 A biodiversity management programme takes effect on --
27 (a) the day on which the relevant notice under section 74 is
28 published in the Gazette; or
29 (b) if a later day is specified in the notice -- that day.
page 55
Biodiversity Conservation Bill 2015
Part 5 Biodiversity management programmes
s. 76
1 76. Publication of biodiversity management programme
2 (1) The CEO must cause each biodiversity management programme
3 to be published on the Department's website and in any other
4 way that the CEO considers appropriate.
5 (2) The CEO may fix and charge a fee for providing a copy of a
6 biodiversity management programme.
7 77. Review of biodiversity management programme
8 (1) The CEO may, at any time, carry out a review of a biodiversity
9 management programme.
10 (2) The CEO must carry out a review of each biodiversity
11 management programme at intervals of not longer than 5 years
12 calculated from the day on which the relevant programme takes
13 effect.
14 78. Amendment of biodiversity management programme
15 (1) The CEO may prepare a draft amendment to a biodiversity
16 management programme.
17 (2) Sections 71 to 76 apply, with all necessary changes, to and in
18 relation to the amendment as if references in those provisions
19 to --
20 (a) a draft programme were references to a draft amendment
21 to a biodiversity management programme; and
22 (b) a biodiversity management programme were references
23 to an amendment to a biodiversity management
24 programme.
25 (3) Despite subsection (2), section 71 does not apply if the
26 amendment is a minor amendment.
27 79. Revocation of biodiversity management programme
28 (1) The Minister may, by instrument, revoke a biodiversity
29 management programme.
page 56
Biodiversity Conservation Bill 2015
Biodiversity management programmes Part 5
s. 80
1 (2) The Minister must consult with the Commission before
2 revoking a biodiversity management programme if the
3 programme relates to land vested in that body or is otherwise
4 relevant to the functions of that body.
5 (3) The CEO must cause notice of a revocation under subsection (1)
6 to be published in the Gazette.
7 (4) A revocation under subsection (1) takes effect on --
8 (a) the day on which the relevant notice under
9 subsection (3) is published in the Gazette; or
10 (b) if a later day is specified in the notice -- that day.
11 (5) If a biodiversity management programme (the new programme)
12 replaces another biodiversity management programme (the old
13 programme), the old programme is to be taken to have been
14 revoked under subsection (1) on the day on which the new
15 programme takes effect.
16 80. Public authority to have regard to biodiversity management
17 programme
18 To the extent that the functions of a public authority relate to
19 matters dealt with in a biodiversity management programme, the
20 public authority must have regard to the programme when
21 performing those functions.
page 57
Biodiversity Conservation Bill 2015
Part 6 Recovery plans and interim recovery plans
Division 1 Preliminary
s. 81
1 Part 6 -- Recovery plans and interim recovery plans
2 Division 1 -- Preliminary
3 81. Terms used
4 In this Part --
5 adopted plan means a plan adopted as a recovery plan under
6 section 92(1);
7 approved plan means a recovery plan approved under
8 section 89(1);
9 draft plan means a draft recovery plan prepared under
10 section 83(1);
11 minor amendment, in relation to a recovery plan or interim
12 recovery plan, means an amendment that, in the opinion of the
13 CEO, is necessary to correct --
14 (a) a clerical mistake or unintentional error or omission in
15 the plan; or
16 (b) a misdescription of any person, land or thing in the plan;
17 proposed plan means a plan that the Minister proposes to adopt
18 under section 92(1) and includes any proposed modification
19 under section 92(2);
20 technical amendment, in relation to a recovery plan or interim
21 recovery plan, means an amendment that, in the opinion of the
22 CEO, is necessary for one or more of the following purposes --
23 (a) to take into account new scientific findings;
24 (b) to take into account a change in the category of listing of
25 the threatened species or threatened ecological
26 community to which the plan relates;
27 (c) to modify or replace criteria referred to in
28 section 82(3)(b);
29 (d) to reflect the completion of actions referred to in
30 section 82(3)(c).
page 58
Biodiversity Conservation Bill 2015
Recovery plans and interim recovery plans Part 6
Preliminary Division 1
s. 82
1 82. Content of recovery plan
2 (1) A recovery plan is a document that provides for the
3 conservation, protection and management of --
4 (a) one or more threatened species; or
5 (b) one or more threatened ecological communities; or
6 (c) a combination of such species and communities.
7 (2) A recovery plan must provide for research and management
8 actions to stop the decline of, and support the recovery of, each
9 threatened species or threatened ecological community to which
10 the plan relates so that its chances of long-term survival in the
11 wild are maximised.
12 (3) In particular, a recovery plan must --
13 (a) state the objectives to be achieved; and
14 (b) state criteria against which achievement of those
15 objectives is to be measured; and
16 (c) specify actions to achieve those objectives; and
17 (d) identify any habitat that is critical habitat, or that may be
18 eligible for listing as critical habitat, for a threatened
19 species or threatened ecological community to which the
20 plan relates and actions to protect that habitat; and
21 (e) identify any population of a threatened species to which
22 the plan relates that is critical to the survival of that
23 species and actions to protect that population; and
24 (f) identify any occurrence of a threatened ecological
25 community to which the plan relates that is critical to the
26 survival of that community and actions to protect that
27 occurrence; and
28 (g) identify any key threatening process that is affecting or
29 is likely to affect a threatened species or threatened
30 ecological community to which the plan relates and
31 specify the proposed means for preventing, eradicating,
32 reducing or containing that process; and
page 59
Biodiversity Conservation Bill 2015
Part 6 Recovery plans and interim recovery plans
Division 2 Approved plans
s. 83
1 (h) state the estimated duration of the plan; and
2 (i) identify --
3 (i) land that will be materially affected by the plan's
4 implementation; and
5 (ii) persons or bodies who or which appear to the
6 CEO to be likely to be involved in implementing
7 the plan or evaluating its effectiveness.
8 Division 2 -- Approved plans
9 83. Preparation of draft plan
10 (1) The CEO may prepare a draft recovery plan.
11 (2) Before preparing a draft plan the CEO must have regard to --
12 (a) the resources available for the preparation of the plan;
13 and
14 (b) the estimated cost of implementing the plan.
15 84. Consultation on draft plan
16 When preparing a draft plan the CEO must consult with --
17 (a) the Commission if the plan relates to a threatened
18 species or threatened ecological community on land
19 vested in that body or is otherwise relevant to the
20 functions of that body; and
21 (b) each owner or occupier of land to be identified in the
22 plan under section 82(3)(i)(i); and
23 (c) each person or body to be identified in the plan under
24 section 82(3)(i)(ii).
25 85. CEO to publicise draft plan
26 (1) The CEO must publish in the Gazette and on the Department's
27 website a notice --
28 (a) specifying where copies of the draft plan may be
29 inspected and obtained; and
page 60
Biodiversity Conservation Bill 2015
Recovery plans and interim recovery plans Part 6
Approved plans Division 2
s. 86
1 (b) specifying the period for submissions under section 86
2 and an address for those submissions.
3 (2) The CEO must cause the draft plan to be published on the
4 Department's website and in any other way that the CEO
5 considers appropriate.
6 (3) The CEO may fix and charge a fee for providing a copy of the
7 draft plan.
8 86. Public submissions
9 Submissions in respect of a draft plan may be made by any
10 person within a period determined by the CEO that is not less
11 than 60 days after the day on which the notice referred to in
12 section 85(1) is published in the Gazette.
13 87. Referral of draft plan to certain persons or bodies
14 (1) A draft plan, modified as the CEO thinks fit to give effect to any
15 submissions made under section 86, together with a summary of
16 those submissions --
17 (a) must be referred by the CEO to each person or body
18 consulted under section 84; and
19 (b) may be referred by the CEO to any other person or
20 body.
21 (2) If a person or body to which a draft plan is referred under
22 subsection (1) considers that the CEO should modify the draft
23 plan, the person or body may, within 28 days after receipt of the
24 draft plan, in writing request the CEO to make the modification.
25 88. Submission to Minister
26 (1) The CEO may submit a draft plan, modified as the CEO thinks
27 fit to give effect to any submissions made under section 86 or
28 requests made under section 87(2), to the Minister for approval.
page 61
Biodiversity Conservation Bill 2015
Part 6 Recovery plans and interim recovery plans
Division 2 Approved plans
s. 89
1 (2) The draft plan must be accompanied by copies of submissions
2 made under section 86 and requests made under section 87(2) in
3 respect of the draft plan.
4 (3) The Minister may require the CEO to modify the draft plan and
5 resubmit it.
6 89. Approval of plan
7 (1) The Minister may approve a draft plan submitted under
8 section 88 as a recovery plan or refuse to approve it.
9 (2) The Minister must not give approval under subsection (1) unless
10 the Minister --
11 (a) is satisfied that the draft plan meets the requirements of
12 section 82(2) and (3); and
13 (b) has had regard to --
14 (i) any submissions made under section 86 or
15 requests made under section 87(2) in respect of
16 the draft plan; and
17 (ii) the matters referred to in section 97.
18 90. Amendment of approved plan
19 (1) The CEO may prepare a draft amendment to an approved plan.
20 (2) Sections 84 to 89, 98, 99 and 100 apply, with all necessary
21 changes, to and in relation to the amendment as if references in
22 those provisions to --
23 (a) a draft plan were references to a draft amendment
24 prepared under subsection (1); and
25 (b) an approved plan or a recovery plan were references to
26 an amendment to an approved plan.
27 (3) Despite subsection (2), sections 84 to 87 do not apply if the
28 amendment is a minor amendment or technical amendment.
page 62
Biodiversity Conservation Bill 2015
Recovery plans and interim recovery plans Part 6
Adopted plans Division 3
s. 91
1 91. Joint recovery plan
2 (1) If a threatened species or threatened ecological community
3 occurs in both this State and another State, a self-governing
4 Territory or an external Territory, the Minister may seek the
5 cooperation of --
6 (a) each State and self-governing Territory in which the
7 species or community occurs; and
8 (b) in the case of each external Territory in which the
9 species or community occurs -- the Commonwealth,
10 with a view to making a recovery plan jointly with the other
11 State, the self-governing Territory or the Commonwealth, or
12 with their agencies (a joint recovery plan).
13 (2) Sections 84 to 89 apply, with all necessary changes, to the
14 preparation and approval of a joint recovery plan.
15 (3) Sections 90, 101 and 102 do not apply to a joint recovery plan.
16 (4) A joint recovery plan must contain provisions that set out
17 procedures for the amendment, review and revocation of the
18 plan.
19 (5) Nothing in this Division affects the power of the State, under
20 the EPBC Act, to make --
21 (a) a recovery plan jointly with the Commonwealth; or
22 (b) a joint wildlife conservation plan with the
23 Commonwealth.
24 Division 3 -- Adopted plans
25 92. Adoption of plan
26 (1) The Minister may, by instrument, adopt as a recovery plan a
27 plan made by any of the following, whether or not the plan is in
28 force --
29 (a) another State, a self-governing Territory or the
30 Commonwealth;
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Biodiversity Conservation Bill 2015
Part 6 Recovery plans and interim recovery plans
Division 3 Adopted plans
s. 93
1 (b) an agency of another State, a self-governing Territory or
2 the Commonwealth.
3 (2) The Minister may adopt a plan as a recovery plan with such
4 modifications as are specified in the instrument.
5 (3) The Minister must not adopt a plan under subsection (1) unless
6 the Minister --
7 (a) is satisfied that the proposed plan meets the
8 requirements of section 82(2) and (3); and
9 (b) has had regard to --
10 (i) any submissions made under section 94 or
11 requests made under section 95(2) in respect of
12 the proposed plan; and
13 (ii) the matters referred to in section 97.
14 93. CEO to publicise proposed plan
15 (1) Before the adoption of a plan under section 92(1), the CEO
16 must publish in the Gazette and on the Department's website a
17 notice --
18 (a) specifying where copies of the proposed plan may be
19 inspected and obtained; and
20 (b) specifying the period for submissions under section 94
21 and an address for those submissions.
22 (2) The CEO must cause the proposed plan to be published on the
23 Department's website and in any other way that the CEO
24 considers appropriate.
25 (3) The CEO may fix and charge a fee for providing a copy of the
26 proposed plan.
27 94. Public submissions
28 Submissions in respect of a proposed plan may be made by any
29 person within a period determined by the CEO that is not less
page 64
Biodiversity Conservation Bill 2015
Recovery plans and interim recovery plans Part 6
Adopted plans Division 3
s. 95
1 than 60 days after the day on which the notice referred to in
2 section 93(1) is published in the Gazette.
3 95. Referral of proposed plan to certain persons or bodies
4 (1) Before the adoption of a plan under section 92(1), the CEO --
5 (a) must refer the proposed plan to --
6 (i) the Commission if the plan relates to a threatened
7 species or threatened ecological community on
8 land vested in that body or is otherwise relevant
9 to the functions of that body; and
10 (ii) each owner or occupier of land to be identified in
11 the plan under section 82(3)(i)(i); and
12 (iii) each person or body to be identified in the plan
13 under section 82(3)(i)(ii);
14 and
15 (b) may refer the proposed plan to any other person or body.
16 (2) If a person or body to which a proposed plan is referred under
17 subsection (1) considers that a modification should be made to
18 the proposed plan, the person or body may, within 28 days after
19 receipt of the proposed plan, in writing request the Minister to
20 make the modification.
21 96. Amendment of adopted plan
22 (1) The Minister may, by instrument, amend an adopted plan.
23 (2) Sections 92(3) to 95, 98, 99 and 100 apply, with all necessary
24 changes, to and in relation to the amendment as if references in
25 those provisions to --
26 (a) the adoption of a plan were references to the amendment
27 of an adopted plan under subsection (1); and
28 (b) a proposed plan were references to a proposed
29 amendment under subsection (1); and
30 (c) a recovery plan were references to an amendment under
31 subsection (1).
page 65
Biodiversity Conservation Bill 2015
Part 6 Recovery plans and interim recovery plans
Division 4 General provisions for recovery plans
s. 97
1 (3) Despite subsection (2), sections 93 to 95 do not apply if the
2 amendment is a minor amendment or technical amendment.
3 Division 4 -- General provisions for recovery plans
4 97. Matters relevant to approval or adoption of recovery plan
5 The following matters are to be considered by the Minister in
6 deciding whether to approve a recovery plan or adopt a plan as a
7 recovery plan under this Part --
8 (a) the objects of this Act;
9 (b) the most efficient and effective use of the resources that
10 are allocated for biodiversity conservation;
11 (c) the need to minimise any significant adverse social and
12 economic impacts, consistently with the principles of
13 ecologically sustainable development set out in
14 section 4;
15 (d) Australia's obligations under international agreements
16 relevant to the threatened species or threatened
17 ecological community to which the plan relates;
18 (e) the extent to which any environmental protection policy
19 affects the conservation, protection and management of
20 the threatened species or threatened ecological
21 community to which the plan relates;
22 (f) the extent to which the conservation, protection and
23 management of the threatened species or threatened
24 ecological community to which the plan relates are
25 addressed by --
26 (i) any implementation conditions as defined in the
27 Environmental Protection Act 1986 section 3(1);
28 or
29 (ii) any conditions agreed or decided under the
30 Environmental Protection Act 1986 Part IV
31 Division 3; or
page 66
Biodiversity Conservation Bill 2015
Recovery plans and interim recovery plans Part 6
General provisions for recovery plans Division 4
s. 98
1 (iii) any conditions to which a clearing permit under
2 the Environmental Protection Act 1986 Part V
3 Division 2 is subject.
4 98. Notice of recovery plan
5 (1) If the Minister approves a recovery plan or adopts a plan as a
6 recovery plan under this Part, the CEO must cause notice of the
7 plan to be published in the Gazette.
8 (2) The notice must specify --
9 (a) in the case of an approved plan -- whether any
10 modifications were made to the draft plan under
11 section 88(1); and
12 (b) where copies of the recovery plan may be inspected and
13 obtained.
14 99. Operation of recovery plan
15 A recovery plan takes effect on --
16 (a) the day on which the relevant notice under section 98 is
17 published in the Gazette; or
18 (b) if a later day is specified in the notice -- that day.
19 100. Publication of recovery plan
20 (1) The CEO must cause each recovery plan to be published on the
21 Department's website and in any other way that the CEO
22 considers appropriate.
23 (2) The CEO may fix and charge a fee for providing a copy of a
24 recovery plan.
25 101. Review of recovery plan
26 (1) The CEO may, at any time, carry out a review of a recovery
27 plan.
page 67
Biodiversity Conservation Bill 2015
Part 6 Recovery plans and interim recovery plans
Division 4 General provisions for recovery plans
s. 102
1 (2) The CEO must carry out a review of each recovery plan at
2 intervals of not longer than 10 years calculated from the day on
3 which the relevant recovery plan takes effect.
4 102. Revocation of recovery plan
5 (1) The Minister may, by instrument, revoke a recovery plan.
6 (2) The Minister must consult with the Commission before
7 revoking a recovery plan if the plan relates to a threatened
8 species or threatened ecological community on land vested in
9 that body or is otherwise relevant to the functions of that body.
10 (3) The CEO must cause notice of a revocation under subsection (1)
11 to be published in the Gazette.
12 (4) A revocation under subsection (1) takes effect on --
13 (a) the day on which the relevant notice under
14 subsection (3) is published in the Gazette; or
15 (b) if a later day is specified in the notice -- that day.
16 (5) If a recovery plan (the new plan) replaces another recovery plan
17 (the old plan), the old plan is to be taken to have been revoked
18 under subsection (1) on the day on which the new plan takes
19 effect.
20 103. Public authority to have regard to recovery plan
21 To the extent that the functions of a public authority relate to
22 matters dealt with in a recovery plan, the public authority must
23 have regard to the plan when performing those functions.
page 68
Biodiversity Conservation Bill 2015
Recovery plans and interim recovery plans Part 6
Interim recovery plans Division 5
s. 104
1 Division 5 -- Interim recovery plans
2 104. Interim recovery plan
3 (1) An interim recovery plan is a document that sets out measures
4 for the conservation, protection and management of --
5 (a) one or more threatened species; or
6 (b) one or more threatened ecological communities; or
7 (c) a combination of such species and communities.
8 (2) An interim recovery plan may include provisions dealing with
9 one or more of the matters referred to in section 82(3).
10 105. Making an interim recovery plan
11 The CEO may, by instrument, make an interim recovery plan if
12 the CEO is satisfied that --
13 (a) it is necessary to make provision for the conservation,
14 protection and management of a threatened species or
15 threatened ecological community in order to stop the
16 decline of, and support the recovery of, the species or
17 community so that its chances of long-term survival in
18 the wild are maximised; but
19 (b) there is insufficient scientific information available to
20 allow the preparation of a recovery plan for that
21 threatened species or threatened ecological community.
22 106. Consultation on proposed plan
23 Before making an interim recovery plan the CEO --
24 (a) must consult with the Commission if the proposed plan
25 relates to a threatened species or threatened ecological
26 community on land vested in that body or is otherwise
27 relevant to the functions of that body; and
page 69
Biodiversity Conservation Bill 2015
Part 6 Recovery plans and interim recovery plans
Division 5 Interim recovery plans
s. 107
1 (b) may consult with any other person or body who or
2 which appears to the CEO to be likely to be affected in a
3 material way by the proposed plan.
4 107. Notice of interim recovery plan
5 (1) If the CEO makes an interim recovery plan, the CEO must
6 cause notice of the plan to be published in the Gazette.
7 (2) The notice must specify where copies of the plan may be
8 inspected and obtained.
9 108. Operation of interim recovery plan
10 An interim recovery plan takes effect on --
11 (a) the day on which the relevant notice under section 107 is
12 published in the Gazette; or
13 (b) if a later day is specified in the notice -- that day.
14 109. Publication of interim recovery plan
15 (1) The CEO must cause each interim recovery plan to be published
16 on the Department's website and in any other way that the CEO
17 considers appropriate.
18 (2) The CEO may fix and charge a fee for providing a copy of an
19 interim recovery plan.
20 110. Review of interim recovery plan
21 (1) The CEO may, at any time, carry out a review of an interim
22 recovery plan.
23 (2) The CEO must carry out a review of each interim recovery plan
24 at intervals of not longer than 5 years calculated from the day on
25 which the relevant plan takes effect.
26 111. Amendment of interim recovery plan
27 (1) The CEO may, by instrument, amend an interim recovery plan.
page 70
Biodiversity Conservation Bill 2015
Recovery plans and interim recovery plans Part 6
Interim recovery plans Division 5
s. 112
1 (2) Sections 106 to 109 apply, with all necessary changes, to and in
2 relation to the amendment as if references in those provisions to
3 an interim recovery plan were references to an amendment to an
4 interim recovery plan.
5 (3) Despite subsection (2), section 106 does not apply if the
6 amendment is a minor amendment or technical amendment.
7 112. Revocation of interim recovery plan
8 (1) The CEO may, by instrument, revoke an interim recovery plan.
9 (2) The CEO must consult with the Commission before revoking an
10 interim recovery plan if the plan relates to a threatened species
11 or threatened ecological community on land vested in that body
12 or is otherwise relevant to the functions of that body.
13 (3) The CEO must cause notice of a revocation under subsection (1)
14 to be published in the Gazette.
15 (4) A revocation under subsection (1) takes effect on --
16 (a) the day on which the relevant notice under
17 subsection (3) is published in the Gazette; or
18 (b) if a later day is specified in the notice -- that day.
19 (5) If an interim recovery plan (the new plan) replaces another
20 interim recovery plan (the old plan), the old plan is to be taken
21 to have been revoked under subsection (1) on the day on which
22 the new plan takes effect.
23 113. Public authority to have regard to interim recovery plan
24 To the extent that the functions of a public authority relate to
25 matters dealt with in an interim recovery plan, the public
26 authority must have regard to the plan when performing those
27 functions.
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s. 114
1 Part 7 -- Biodiversity conservation agreements
2 114. Minister may enter into biodiversity conservation
3 agreement
4 (1) The Minister may, on behalf of the State, enter into an
5 agreement (a biodiversity conservation agreement) with an
6 owner or occupier of land in relation to land specified in the
7 agreement.
8 (2) A biodiversity conservation agreement may be entered into for
9 one or more of the following purposes --
10 (a) to facilitate the ecologically sustainable use of
11 biodiversity components;
12 (b) to mitigate the effect of, or prevent, activities that may
13 have an adverse impact on biodiversity or biodiversity
14 components;
15 (c) to otherwise promote or enhance biodiversity
16 conservation in the State.
17 (3) The Minister must not enter into a biodiversity conservation
18 agreement unless the Minister is satisfied that implementation
19 of, or compliance with, the agreement will be of overall benefit
20 to biodiversity conservation in the State.
21 (4) The Minister must not enter into a biodiversity conservation
22 agreement with an owner of land unless the following persons
23 have consented in writing to the agreement --
24 (a) each occupier of the land who is not an owner of the
25 land;
26 (b) each mortgagee of the land.
27 (5) The Minister must not enter into a biodiversity conservation
28 agreement with an occupier of land unless the following persons
29 have consented in writing to the agreement --
30 (a) each owner of the land;
31 (b) each mortgagee of the land.
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1 (6) Before entering into a biodiversity conservation agreement that
2 relates to Crown land, the Minister must obtain the concurrence
3 of the Minister responsible for the administration of the Land
4 Administration Act 1997.
5 115. Content of biodiversity conservation agreement
6 (1) In this section --
7 agreement land means the land to which the biodiversity
8 conservation agreement relates;
9 specified means specified in the biodiversity conservation
10 agreement.
11 (2) A biodiversity conservation agreement may make provision for
12 the Minister to do one or more of the following --
13 (a) provide financial assistance to the other party to the
14 agreement;
15 (b) provide goods or services to the other party to the
16 agreement;
17 (c) provide technical advice to the other party to the
18 agreement;
19 (d) carry out, or make arrangements for the carrying out of,
20 a specified activity;
21 (e) implement, or participate in the implementation of, a
22 plan for the management of the agreement land;
23 (f) do anything else that is necessary or expedient to
24 achieve any of the purposes set out in section 114(2).
25 (3) A biodiversity conservation agreement may make provision for
26 the owner or occupier of land who is a party to the agreement to
27 do one or more of the following --
28 (a) restrict the use of the agreement land;
29 (b) carry out a specified activity or do a specified thing on
30 the agreement land;
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1 (c) refrain from carrying out a specified activity or doing a
2 specified thing on the agreement land;
3 (d) not permit any other person to carry out a specified
4 activity or do a specified thing on the agreement land;
5 (e) permit access to the agreement land by a specified
6 person;
7 (f) contribute towards costs incurred in connection with
8 biodiversity conservation on the agreement land;
9 (g) apply money provided by way of financial assistance
10 under the agreement in a specified manner;
11 (h) repay money provided by way of financial assistance
12 under the agreement if the party commits a specified
13 breach of the agreement or in other specified
14 circumstances;
15 (i) return goods provided under the agreement if the party
16 commits a specified breach of the agreement or in other
17 specified circumstances;
18 (j) implement, or participate in the implementation of, a
19 plan for the management of the agreement land;
20 (k) do anything else that is necessary or expedient to
21 achieve any of the purposes set out in section 114(2).
22 116. Amendment or cancellation of biodiversity conservation
23 agreement
24 (1) In this section --
25 other party to the agreement includes any person who is bound
26 by the agreement under section 118.
27 (2) The Minister may amend a biodiversity conservation agreement
28 with the consent in writing of the other party to the agreement.
29 (3) Before amending a biodiversity conservation agreement that
30 relates to Crown land, the Minister must obtain the concurrence
31 of the Minister responsible for the administration of the Land
32 Administration Act 1997.
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1 (4) The Minister may, by written notice given to the other party to
2 the agreement, cancel a biodiversity conservation agreement if,
3 in the opinion of the Minister, the agreement --
4 (a) is no longer needed to achieve a purpose for which it
5 was entered into; or
6 (b) is no longer capable of being used to achieve a purpose
7 for which it was entered into.
8 (5) If a biodiversity conservation agreement is cancelled under
9 subsection (4), the other party to the agreement is not entitled to
10 any compensation for loss resulting from the cancellation.
11 (6) A biodiversity conservation agreement must not exclude,
12 modify or restrict the operation of this section and to the extent
13 that it purports to do so it is of no effect.
14 117. Lodgment of notification with Registrar and withdrawal of
15 notification
16 (1) If a biodiversity conservation agreement is entered into under
17 section 114(1), the CEO must lodge a notification in relation to
18 the biodiversity conservation agreement with the Registrar.
19 (2) If the biodiversity conservation agreement is cancelled, the CEO
20 must apply to the Registrar for the notification lodged under
21 subsection (1) to be withdrawn.
22 (3) The following requirements apply to a notification under
23 subsection (1) and an application under subsection (2) --
24 (a) it must be in a form approved by the Registrar;
25 (b) it must be accompanied by any information the Registrar
26 requires;
27 (c) it must be accompanied by any relevant fee payable
28 under the Transfer of Land Act 1893 or another written
29 law.
30 (4) On the lodgment of a notification under subsection (1) or the
31 receipt of an application under subsection (2), the Registrar
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1 must make any endorsement or notation the Registrar considers
2 necessary on the certificate of title or other appropriate record in
3 respect of the land to which the notification or application, as
4 the case requires, relates.
5 118. Biodiversity conservation agreement binding on owners and
6 occupiers
7 If a certificate of title or other record in respect of land contains
8 an endorsement or notation relating to a notification lodged
9 under section 117(1), the biodiversity conservation agreement to
10 which the notification relates, as amended from time to time
11 under section 116(2), binds each successive owner or occupier
12 of the land.
13 119. Duty to notify CEO of change in ownership or occupation
14 (1) If a certificate of title or other record in respect of land contains
15 an endorsement or notation relating to a notification lodged
16 under section 117(1), an owner of the land to which the
17 notification relates must give written notice to the CEO in
18 accordance with subsection (2) if --
19 (a) that person ceases to be an owner of the land; or
20 (b) that person or another person ceases to be an occupier of
21 the land.
22 Penalty for this subsection: a fine of $20 000.
23 (2) The notice must --
24 (a) give details of the change in ownership or occupation of
25 the land, including the name and address of the next
26 owner or occupier of the land (if known); and
27 (b) be given to the CEO within 60 days after the day on
28 which the change in ownership or occupation of the land
29 occurs.
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1 120. Action in respect of money, goods or services provided
2 under agreement
3 (1) If the CEO is satisfied that goods provided to an owner or
4 occupier of land under a biodiversity conservation agreement
5 are being used for purposes other than the purposes of the
6 agreement or have not been used, a wildlife officer may --
7 (a) enter land on which the goods are located; and
8 (b) on behalf of the CEO take possession of and remove the
9 goods.
10 (2) A wildlife officer must not enter land under subsection (1)
11 unless --
12 (a) an owner or occupier of the land has consented to the
13 entry; or
14 (b) an owner or occupier of the land has been given
15 reasonable notice of the proposed entry and has not
16 objected to the entry; or
17 (c) the entry is in accordance with an entry warrant.
18 (3) Part 12 Division 3 applies, with all necessary changes, in
19 relation to applications for, and the issue and execution of, entry
20 warrants for the purposes of subsection (2)(c).
21 (4) Without limiting subsection (3), references in Part 12 Division 3
22 to inspection purposes are to be taken to include the purposes of
23 taking action under subsection (1).
24 (5) If the CEO is satisfied that an amount of money provided to an
25 owner or occupier of land by way of financial assistance under a
26 biodiversity conservation agreement has been used for purposes
27 other than the purposes of the agreement, the CEO may require
28 the owner or occupier to pay that amount to the CEO.
29 (6) If the CEO is satisfied that goods or services provided to an
30 owner or occupier of land under a biodiversity conservation
31 agreement have been used for purposes other than the purposes
32 of the agreement, the CEO may require the owner or occupier to
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1 pay to the CEO an amount determined by the CEO to be
2 equivalent to the value of those goods or services.
3 (7) The CEO may recover an amount payable under subsection (5)
4 or (6) in a court of competent jurisdiction as a debt due to the
5 State.
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s. 121
1 Part 8 -- Biodiversity conservation covenants
2 121. Terms used
3 In this Part --
4 covenant land, in relation to a biodiversity conservation
5 covenant, means the land to which the covenant relates;
6 covenantor has the meaning given in section 122(1);
7 register, in relation to a biodiversity conservation covenant,
8 means --
9 (a) if the covenant relates to land that is under the operation
10 of the Transfer of Land Act 1893 -- to endorse the
11 particulars of the covenant on the certificate of title for
12 that land; or
13 (b) if the covenant relates to other land -- to enter the
14 particulars of the covenant in the appropriate record
15 under the Registration of Deeds Act 1856.
16 122. Biodiversity conservation covenant
17 (1) An owner of land (the covenantor) may enter into a covenant (a
18 biodiversity conservation covenant) with the CEO to set aside
19 the land or part of the land for one or more of the following
20 purposes --
21 (a) the conservation, protection or management of
22 biodiversity or biodiversity components on the land;
23 (b) the conservation, protection or management of --
24 (i) a specially protected species that occurs on the
25 land; or
26 (ii) a threatened species that occurs on the land; or
27 (iii) a threatened ecological community that occurs
28 on the land;
29 (c) scientific purposes consistent with a purpose referred to
30 in paragraph (a) or (b);
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1 (d) public education purposes consistent with a purpose
2 referred to in paragraph (a) or (b).
3 (2) A biodiversity conservation covenant may be expressed to have
4 effect for a period of time or in perpetuity.
5 (3) A biodiversity conservation covenant may do one or more of the
6 following --
7 (a) restrict the use of the covenant land;
8 (b) restrict the nature of works that may be carried out on
9 the covenant land;
10 (c) require that action specified in the covenant be taken on
11 the covenant land;
12 (d) require that action be taken in a manner specified in the
13 covenant on the covenant land.
14 (4) Different provisions of a biodiversity conservation covenant
15 may be expressed to apply to different parts of the covenant
16 land.
17 (5) A biodiversity conservation covenant must be in a form
18 approved by the Registrar.
19 123. Consents required
20 A biodiversity conservation covenant must have endorsed on it
21 the consent of each person who has a registered interest (within
22 the meaning of the Transfer of Land Act 1893) in the covenant
23 land.
24 124. Persons bound by biodiversity conservation covenant
25 Each of the following persons is bound by a biodiversity
26 conservation covenant --
27 (a) the covenantor while the covenantor remains the owner
28 of the covenant land;
29 (b) a person who is bound by the covenant under
30 section 129.
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s. 125
1 125. Modification of biodiversity conservation covenant
2 A biodiversity conservation covenant may be modified by
3 agreement in writing between the CEO and each person who is
4 bound by the covenant.
5 126. Cancellation of biodiversity conservation covenant
6 (1) In this section --
7 permanent covenant means a biodiversity conservation
8 covenant that is expressed to have effect in perpetuity.
9 (2) A biodiversity conservation covenant that is not a permanent
10 covenant may be cancelled --
11 (a) by agreement in writing between the CEO and each
12 person who is bound by the covenant; or
13 (b) by written notice given by the CEO to each person who
14 is bound by the covenant.
15 (3) A permanent covenant may be cancelled by agreement in
16 writing between the CEO and each person who is bound by the
17 covenant.
18 127. Lodgment of biodiversity conservation covenant with
19 Registrar
20 (1) If a biodiversity conservation covenant is entered into under
21 section 122(1), the CEO must lodge the biodiversity
22 conservation covenant with the Registrar.
23 (2) A biodiversity conservation covenant lodged under
24 subsection (1) must be --
25 (a) accompanied by any information the Registrar requires;
26 and
27 (b) accompanied by any fee payable in respect of the
28 covenant under the Transfer of Land Act 1893 or
29 another written law.
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1 (3) On the lodgment of a biodiversity conservation covenant under
2 subsection (1), the Registrar must register the covenant.
3 (4) If a biodiversity conservation covenant is lodged under
4 subsection (1), the CEO must give a copy of the covenant to the
5 Commissioner of State Revenue.
6 128. Instruments relating to modification or cancellation of
7 biodiversity conservation covenant to be given to Registrar
8 (1) If a biodiversity conservation covenant registered under
9 section 127(3) is modified, the CEO must give the Registrar a
10 notice setting out the modification.
11 (2) If a biodiversity conservation covenant registered under
12 section 127(3) is cancelled, the CEO must apply to the Registrar
13 for the covenant to be discharged.
14 (3) The following requirements apply to a notice under
15 subsection (1) and an application under subsection (2) --
16 (a) it must be in writing in a form approved by the
17 Registrar;
18 (b) it must be accompanied by any information the Registrar
19 requires;
20 (c) it must be accompanied by any relevant fee payable
21 under the Transfer of Land Act 1893 or another written
22 law.
23 (4) On receiving a notice under subsection (1), the Registrar must
24 make any endorsement or notation the Registrar considers
25 necessary on the certificate of title or other appropriate record in
26 respect of the land to which the biodiversity conservation
27 covenant relates.
28 (5) On receiving an application under subsection (2), the Registrar
29 must discharge the biodiversity conservation covenant.
30 (6) If the CEO gives a notice under subsection (1) or makes an
31 application under subsection (2), the CEO must give a copy of
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s. 129
1 the notice or application, as the case requires, to the
2 Commissioner of State Revenue.
3 129. Biodiversity conservation covenant binding on successive
4 owners
5 While a biodiversity conservation covenant remains
6 registered --
7 (a) the covenant binds each successive owner of the land to
8 which the covenant relates; and
9 (b) if a certificate of title or other record in respect of the
10 land to which the covenant relates contains an
11 endorsement or notation relating to a notice given under
12 section 128(1), the modification to the covenant referred
13 to in the notice binds each successive owner of the land.
14 130. Contravention of biodiversity conservation covenant
15 A person who is bound by a biodiversity conservation covenant
16 must not contravene the covenant.
17 Penalty: a fine of $50 000.
18 131. Duty to notify CEO of change in ownership or occupation
19 (1) While a biodiversity conservation covenant remains registered
20 under section 127(3), an owner of the land to which the
21 covenant relates must give written notice to the CEO in
22 accordance with subsection (2) if --
23 (a) that person ceases to be an owner of the land; or
24 (b) that person or another person ceases to be an occupier of
25 the land.
26 Penalty for this subsection: a fine of $20 000.
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1 (2) The notice must --
2 (a) give details of the change in ownership or occupation of
3 the land, including the name and address of the next
4 owner or occupier of the land (if known); and
5 (b) be given to the CEO within 60 days after the day on
6 which the change in ownership or occupation of the land
7 occurs.
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Control of environmental pests Part 9
s. 132
1 Part 9 -- Control of environmental pests
2 132. Declaration of environmental pest
3 (1) The Minister may, by order, declare that a species specified in
4 the order or a species of a class specified in the order is an
5 environmental pest for an area if --
6 (a) there are reasonable grounds for believing that the
7 species has, or may have, an adverse effect on
8 biodiversity or biodiversity components in the area; and
9 (b) it is appropriate, in the opinion of the Minister, to
10 require measures to be taken to control the species.
11 (2) The area for which a species is declared to be an environmental
12 pest may be the whole of the State or part of the State.
13 (3) Before making an order under subsection (1), the Minister --
14 (a) must obtain the concurrence of --
15 (i) the Minister responsible for the administration of
16 the Biosecurity and Agriculture Management
17 Act 2007; and
18 (ii) if the species to which the order relates is a
19 species of fish -- the Minister responsible for the
20 administration of the Fish Resources
21 Management Act 1994; and
22 (iii) if the species to which the order relates is a
23 species of pearl oyster -- the Minister
24 responsible for the administration of the Pearling
25 Act 1990;
26 and
27 (b) must consult with --
28 (i) the Minister responsible for the administration of
29 the Biological Control Act 1986; and
30 (ii) the Minister responsible for the administration of
31 the Exotic Diseases of Animals Act 1993; and
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1 (iii) if the species to which the order relates is a plant
2 prescribed as a pest plant by local laws made
3 under the Biosecurity and Agriculture
4 Management Act 2007 section 193(2)(a) -- the
5 Minister responsible for the administration of the
6 Local Government Act 1995.
7 (4) Section 258 applies to an order made under subsection (1).
8 133. Matters to be considered by Minister
9 (1) In forming an opinion for the purposes of section 132(1)(b), the
10 Minister must have regard to biodiversity conservation as the
11 primary consideration but must also have regard to whether --
12 (a) resources are available for the control of the species in
13 the area; and
14 (b) it is practicable to control the species in the area.
15 (2) The Minister must not make an order under section 132(1)
16 unless the Minister is satisfied that other biodiversity
17 conservation measures are or would be inadequate to control the
18 species to which the order relates.
19 (3) Without limiting subsection (2), if a species is a declared pest
20 for an area, the Minister must not make an order under
21 section 132(1) declaring the species to be an environmental pest
22 for that area or part of that area unless the Minister is satisfied
23 that measures in addition to biosecurity measures in force in
24 respect of the species are necessary to control the species.
25 134. Environmental pest on CALM Act land
26 (1) If CALM Act land is in an area for which a species is an
27 environmental pest, the CEO must --
28 (a) eradicate the environmental pest on the CALM Act land
29 if it is practicable to do so; or
30 (b) take measures to otherwise control the environmental
31 pest on the CALM Act land.
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1 (2) In the case of land the subject of an agreement under the CALM
2 Act section 8A, subsection (1) does not apply to the extent that
3 the performance of any obligation it imposes would be contrary
4 to or inconsistent with the agreement.
5 135. Environmental pest notice
6 (1) This section does not apply in relation to CALM Act land.
7 (2) The CEO may give a written notice (an environmental pest
8 notice) to an owner or occupier of land in an area for which a
9 species is an environmental pest requiring the person to whom
10 the notice is given to control the environmental pest on the land
11 by taking measures specified in the notice.
12 (3) An environmental pest notice must --
13 (a) specify the land to which it relates; and
14 (b) specify the environmental pest to which it relates and
15 the extent to which the environmental pest is to be
16 controlled; and
17 (c) specify the period within which the measures specified
18 in it are to be taken; and
19 (d) inform the person to whom it is given that failure to
20 comply with it could result in a fine, the CEO taking
21 remedial action, or both.
22 136. Matters relevant to giving environmental pest notice
23 (1) In this section each of the following terms has the meaning
24 given in the Biosecurity and Agriculture Management Act 2007
25 section 6 --
26 agricultural activity
27 Director General
28 pest control notice
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1 (2) The CEO must not give an environmental pest notice to a
2 person unless --
3 (a) the CEO is of the opinion that other biodiversity
4 conservation measures are or would be inadequate to
5 control the environmental pest to which the notice
6 relates; and
7 (b) if the land to which the notice relates is land used solely
8 or principally for agricultural activity, the CEO has
9 complied with section 137(1); and
10 (c) if the environmental pest to which the notice relates is a
11 species to which this paragraph applies, the CEO has
12 consulted with the Director General on the proposed
13 notice.
14 (3) Subsection (2)(c) applies to a species if --
15 (a) the species is a declared pest for the land to which the
16 proposed notice relates; and
17 (b) a pest control notice is in force in respect of the species
18 on that land.
19 137. Consultation on proposed measures: land used solely or
20 principally for agricultural activity
21 (1) If the CEO proposes to give an environmental pest notice (the
22 proposed notice) to a person in respect of land used solely or
23 principally for agricultural activity, the CEO must give the
24 person --
25 (a) details of the measures required under the proposed
26 notice and the land to which it relates; and
27 (b) a reasonable opportunity to make submissions in
28 relation to those measures.
29 (2) It is sufficient compliance with subsection (1) if the CEO causes
30 a notice to be published in the prescribed way --
31 (a) setting out details of the measures required under the
32 proposed notice and the land to which it relates; and
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1 (b) specifying a reasonable period within which
2 submissions in relation to those measures may be made
3 to the CEO.
4 138. Persons bound by environmental pest notice
5 A person to whom an environmental pest notice is given is
6 bound by the notice.
7 139. Amendment or cancellation of environmental pest notice
8 (1) The CEO may, by written notice given to each person bound by
9 an environmental pest notice, amend or cancel the notice.
10 (2) Before the CEO amends an environmental pest notice that
11 relates to land used solely or principally for agricultural activity,
12 the CEO must give each person bound by the notice --
13 (a) details of the proposed amendment; and
14 (b) a reasonable opportunity to make submissions in
15 relation to the proposed amendment.
16 (3) Subsection (2) does not apply if the proposed amendment is, in
17 the opinion of the CEO, necessary to correct --
18 (a) a clerical mistake or unintentional error or omission in
19 the environmental pest notice; or
20 (b) a misdescription of any person, land or thing in the
21 environmental pest notice.
22 (4) It is sufficient compliance with subsection (2) if the CEO causes
23 a notice to be published in the prescribed way --
24 (a) setting out details of the proposed amendment and the
25 land to which it relates; and
26 (b) specifying a reasonable period within which
27 submissions in relation to the proposed amendment may
28 be made to the CEO.
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1 140. Contravention of environmental pest notice
2 (1) A person who is bound by an environmental pest notice must
3 not contravene the notice.
4 Penalty for this subsection: a fine of $50 000.
5 (2) If an owner of land and an occupier of land are both bound by
6 an environmental pest notice, it is a defence to a charge against
7 either of them of an offence under subsection (1) for the person
8 charged to prove that the other person has controlled the
9 environmental pest as required by the notice.
10 (3) It is a defence to a charge of an offence under subsection (1) to
11 prove that --
12 (a) the direction in the environmental pest notice was, to the
13 extent to which it applied to the land to which the
14 proceedings relate, unnecessary or inappropriate; or
15 (b) the person charged has controlled the environmental
16 pest as required by the notice even though the person
17 has not taken some or all of the measures specified in
18 the notice.
19 141. Duty to notify CEO of change in ownership or occupation
20 (1) A person who is bound by an environmental pest notice must
21 give written notice to the CEO in accordance with
22 subsection (2) if --
23 (a) that person ceases to be an owner of the land to which
24 the environmental pest notice relates; or
25 (b) that person or another person ceases to be an occupier of
26 that land.
27 Penalty for this subsection: a fine of $20 000.
28 (2) The notice must --
29 (a) give details of the change in ownership or occupation of
30 the land, including the name and address of the next
31 owner or occupier of the land (if known); and
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1 (b) be given to the CEO within 60 days after the day on
2 which the change in ownership or occupation of the land
3 occurs.
4 142. Review by CEO
5 (1) A person who is bound by an environmental pest notice may, in
6 writing, request the CEO to review it.
7 (2) On receiving a request the CEO may suspend the notice pending
8 the making of a decision under subsection (3).
9 (3) On receiving a request the CEO may --
10 (a) review the notice and amend, suspend, cancel or confirm
11 it; or
12 (b) refuse to review the notice.
13 (4) If the CEO amends the notice it has effect accordingly.
14 (5) The CEO must give the person who requested the review
15 written notice of the decision under subsection (3) and the
16 reasons for that decision.
17 (6) Nothing in this section prejudices any right of review that a
18 person might have under section 143 but, if a request has been
19 made under this section, that right of review must not be
20 exercised until a decision under subsection (3) has been made.
21 143. Review by State Administrative Tribunal
22 (1) Subject to section 142(6) and regulations referred to in
23 subsection (2), a person who is bound by an environmental pest
24 notice may apply to the State Administrative Tribunal for a
25 review of --
26 (a) a decision of the CEO to give the notice; or
27 (b) a decision of the CEO under section 142(3) in respect of
28 the notice.
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1 (2) The regulations may prescribe circumstances relating to a
2 matter of emergency or urgent need in which subsection (1)
3 does not apply.
4 144. Compliance statements
5 (1) In this section --
6 compliance statement means a statement setting out details
7 of --
8 (a) any contravention by a public authority of an
9 environmental pest notice during the period for which
10 the statement is prepared; and
11 (b) any measures taken to remedy the contravention.
12 (2) The CEO must prepare --
13 (a) a compliance statement for the period 1 January to
14 30 June in each year; and
15 (b) a compliance statement for the period 1 July to
16 30 December in each year.
17 (3) Before preparing a compliance statement, the CEO must consult
18 with each public authority that is to be referred to in the
19 statement.
20 (4) Each compliance statement must be included in the
21 Department's next annual report after the end of the period for
22 which the statement is prepared.
23 (5) Each compliance statement must be given to the Minister not
24 later than 3 months after the end of the period for which the
25 statement is prepared.
26 (6) The Minister must cause a copy of each compliance statement
27 to be laid before each House of Parliament as soon as is
28 practicable after receiving it.
page 92
Biodiversity Conservation Bill 2015
Fauna and flora Part 10
Protection of fauna Division 1
s. 145
1 Part 10 -- Fauna and flora
2 Division 1 -- Protection of fauna
3 Subdivision 1 -- Property in fauna
4 145. Term used: fauna
5 In this Subdivision --
6 fauna does not include fish or pearl oyster.
7 146. Property in fauna
8 (1) The property in fauna is vested in the State.
9 (2) The property in fauna ceases to be vested in the State when it is
10 taken by a person who has lawful authority to take it.
11 (3) Subsection (4) applies to fauna that --
12 (a) has been taken without lawful authority; or
13 (b) is the property of the State under subsection (1).
14 (4) The property in the progeny of fauna to which this subsection
15 applies is vested in the State.
16 147. Property remains vested in the State in certain cases
17 (1) This section applies to the following classes of fauna --
18 (a) fauna taken in accordance with a licence or authorisation
19 under this Act that authorises the capture of live fauna;
20 (b) injured fauna or abandoned fauna captured, rescued,
21 received or temporarily cared for under section 161 or
22 regulations referred to in that section.
23 (2) Despite section 146(2), the property in fauna of a class to which
24 this section applies continues to be vested in the State unless the
25 Minister makes an order under subsection (3).
page 93
Biodiversity Conservation Bill 2015
Part 10 Fauna and flora
Division 1 Protection of fauna
s. 148
1 (3) The Minister may, by order, declare that the property in fauna of
2 a class to which this section applies ceases to be vested in the
3 State.
4 (4) An order made under subsection (3) must specify the time at
5 which property ceases to be vested in the State.
6 (5) Section 258 applies to an order made under subsection (3).
7 148. No compensation
8 The provisions of this Subdivision do not entitle any person to
9 compensation.
10 Subdivision 2 -- Protection provisions
11 149. Taking fauna other than threatened fauna or managed
12 fauna
13 (1) A person must not take fauna unless the person has lawful
14 authority to take it.
15 Penalty for this subsection:
16 (a) if the offence involves a cetacean -- a fine of
17 $500 000;
18 (b) if the offence involves specially protected fauna that
19 is not a cetacean -- a fine of $200 000;
20 (c) in any other case -- a fine of $50 000.
21 (2) Subsection (1) does not apply if the fauna is --
22 (a) threatened fauna; or
23 (b) managed fauna.
24 (3) Subsection (1) does not apply if the fauna is taken by --
25 (a) a CALM Act officer, or a person assisting a CALM Act
26 officer, in exercise of the power in section 165; or
27 (b) an inspector under the Animal Welfare Act 2002, or a
28 person assisting an inspector under that Act, in exercise
29 of the power in section 41(1) of that Act.
page 94
Biodiversity Conservation Bill 2015
Fauna and flora Part 10
Protection of fauna Division 1
s. 150
1 150. Taking threatened fauna
2 (1) A person must not take threatened fauna unless the person is
3 authorised under section 40 to take it and complies with the
4 conditions, if any, to which the authorisation is subject.
5 Penalty for this subsection:
6 (a) if the offence involves a cetacean -- a fine of
7 $500 000;
8 (b) if the offence involves a critically endangered species
9 that is not a cetacean -- a fine of $500 000;
10 (c) if the offence involves an endangered species that is
11 not a cetacean -- a fine of $400 000;
12 (d) if the offence involves a vulnerable species that is not
13 a cetacean -- a fine of $300 000.
14 (2) Subsection (1) does not apply if the threatened fauna is taken
15 by --
16 (a) a CALM Act officer, or a person assisting a CALM Act
17 officer, in exercise of the power in section 165; or
18 (b) an inspector under the Animal Welfare Act 2002, or a
19 person assisting an inspector under that Act, in exercise
20 of the power in section 41(1) of that Act.
21 151. Defences to charges under s. 149 and 150
22 (1) It is a defence to a charge of an offence under section 149(1),
23 other than an offence involving specially protected fauna, to
24 prove that the taking --
25 (a) occurred in the course of a lawful activity the sole or
26 dominant purpose of which was not to take fauna; and
27 (b) could not reasonably have been avoided.
28 (2) It is a defence to a charge of an offence under section 149(1)
29 involving specially protected fauna or an offence under
30 section 150(1) to prove that --
31 (a) the taking --
page 95
Biodiversity Conservation Bill 2015
Part 10 Fauna and flora
Division 1 Protection of fauna
s. 152
1 (i) occurred in the course of a lawful activity the
2 sole or dominant purpose of which was not to
3 take fauna; and
4 (ii) could not reasonably have been avoided;
5 and
6 (b) the person charged did not know, and could not
7 reasonably have known, that the specially protected
8 fauna or threatened fauna concerned was present.
9 (3) The defence in subsection (2) is not available in relation to a
10 charge of an offence under section 150(1) if the taking has
11 resulted in the threatened fauna becoming eligible for listing as
12 an extinct species.
13 152. Possessing fauna
14 (1) A person must not possess fauna unless the person has lawful
15 authority to possess it.
16 Penalty for this subsection:
17 (a) if the offence involves a cetacean -- a fine of
18 $500 000;
19 (b) if the offence involves a critically endangered species
20 that is not a cetacean -- a fine of $500 000;
21 (c) if the offence involves an endangered species that is
22 not a cetacean -- a fine of $400 000;
23 (d) if the offence involves a vulnerable species that is not
24 a cetacean -- a fine of $300 000;
25 (e) if the offence involves specially protected fauna that
26 is not a cetacean -- a fine of $200 000;
27 (f) in any other case -- a fine of $50 000.
28 (2) Subsection (1) does not apply if the fauna is managed fauna.
page 96
Biodiversity Conservation Bill 2015
Fauna and flora Part 10
Protection of fauna Division 1
s. 153
1 (3) It is a defence to a charge of an offence under subsection (1) to
2 prove that --
3 (a) the fauna had been taken in circumstances giving rise to
4 a defence under section 151(1) or (2) or in
5 circumstances beyond the control of the person charged;
6 and
7 (b) the person charged had possession of the fauna for no
8 longer than the period reasonably required to release it
9 or deliver it to a person who had lawful authority to
10 possess it.
11 (4) It is a defence to a charge of an offence under subsection (1)
12 involving possession of a carcass to prove that --
13 (a) the fauna had been killed in circumstances giving rise to
14 a defence under section 151(1) or (2) or in
15 circumstances beyond the control of the person charged;
16 and
17 (b) the carcass, because of its condition or location, was
18 likely to endanger the health or safety of the public; and
19 (c) the person charged had possession of the carcass for no
20 longer than the period reasonably required to move or
21 dispose of it.
22 (5) For the purposes of subsection (1), an inspector under the
23 Animal Welfare Act 2002, or a person assisting an inspector
24 under that Act, has lawful authority to possess fauna seized
25 under that Act for the period reasonably required to comply
26 with section 45 of that Act.
27 153. Disturbing fauna
28 (1) A person must not disturb fauna unless the person has lawful
29 authority to disturb it.
30 Penalty for this subsection:
31 (a) if the offence involves a cetacean -- a fine of
32 $500 000;
page 97
Biodiversity Conservation Bill 2015
Part 10 Fauna and flora
Division 1 Protection of fauna
s. 154
1 (b) if the offence involves a critically endangered species
2 that is not a cetacean -- a fine of $500 000;
3 (c) if the offence involves an endangered species that is
4 not a cetacean -- a fine of $400 000;
5 (d) if the offence involves a vulnerable species that is not
6 a cetacean -- a fine of $300 000;
7 (e) if the offence involves specially protected fauna that
8 is not a cetacean -- a fine of $200 000;
9 (f) in any other case -- a fine of $50 000.
10 (2) Subsection (1) does not apply if the fauna is managed fauna.
11 (3) It is a defence to a charge of an offence under subsection (1)
12 involving fauna that is not a specially protected species or a
13 threatened species to prove that the disturbance --
14 (a) occurred in the course of a lawful activity the sole or
15 dominant purpose of which was not to disturb fauna;
16 and
17 (b) could not reasonably have been avoided.
18 (4) It is a defence to a charge of an offence under subsection (1)
19 involving a specially protected species or a threatened species to
20 prove that --
21 (a) the disturbance --
22 (i) occurred in the course of a lawful activity the
23 sole or dominant purpose of which was not to
24 disturb fauna; and
25 (ii) could not reasonably have been avoided;
26 and
27 (b) the person charged did not know, and could not
28 reasonably have known, that the species was present.
page 98
Biodiversity Conservation Bill 2015
Fauna and flora Part 10
Protection of fauna Division 1
s. 154
1 154. Offender liable to punishment for certain offences despite
2 The Criminal Code s. 11
3 Despite The Criminal Code section 11, a person convicted of an
4 offence under section 149(1), 152(1) or 153(1) may be punished
5 for the offence even if the fauna became managed fauna after
6 the offence was committed.
7 155. Feeding fauna
8 A person must not feed fauna unless the person has lawful
9 authority to feed it.
10 Penalty: a fine of $20 000.
11 156. Use of prohibited device or prohibited method when taking
12 or disturbing fauna
13 (1) A person must not use any prohibited device or prohibited
14 method in the taking or disturbance of fauna.
15 Penalty for this subsection: a fine of $50 000.
16 (2) An occupier of land must not allow any prohibited device or
17 prohibited method to be used in the taking or disturbance of
18 fauna on the land.
19 Penalty for this subsection: a fine of $50 000.
20 (3) An occupier of land must not allow any prohibited device to be
21 on the land if the occupier knows or ought reasonably to know
22 that it is to be used in the taking or disturbance of fauna.
23 Penalty for this subsection: a fine of $50 000.
24 157. Dealing in fauna
25 (1) A person must not deal in fauna except under the authority of a
26 licence.
27 Penalty for this subsection:
28 (a) if the offence involves a cetacean -- a fine of
29 $500 000;
page 99
Biodiversity Conservation Bill 2015
Part 10 Fauna and flora
Division 1 Protection of fauna
s. 158
1 (b) if the offence involves a critically endangered species
2 that is not a cetacean -- a fine of $500 000;
3 (c) if the offence involves an endangered species that is
4 not a cetacean -- a fine of $400 000;
5 (d) if the offence involves a vulnerable species that is not
6 a cetacean -- a fine of $300 000;
7 (e) if the offence involves specially protected fauna that
8 is not a cetacean -- a fine of $200 000;
9 (f) in any other case -- a fine of $50 000.
10 (2) For the purposes of subsection (1), a person deals in fauna if the
11 person conducts a business that involves the purchase or supply
12 of fauna.
13 158. Processing fauna
14 (1) In this section --
15 fauna does not include fish or pearl oyster.
16 (2) A person must not process fauna for a commercial purpose
17 except under the authority of a licence.
18 Penalty for this subsection:
19 (a) if the offence involves a cetacean -- a fine of
20 $500 000;
21 (b) if the offence involves a critically endangered species
22 that is not a cetacean -- a fine of $500 000;
23 (c) if the offence involves an endangered species that is
24 not a cetacean -- a fine of $400 000;
25 (d) if the offence involves a vulnerable species that is not
26 a cetacean -- a fine of $300 000;
27 (e) if the offence involves specially protected fauna that
28 is not a cetacean -- a fine of $200 000;
29 (f) in any other case -- a fine of $50 000.
page 100
Biodiversity Conservation Bill 2015
Fauna and flora Part 10
Protection of fauna Division 1
s. 159
1 (3) A person must not operate a fauna processing establishment
2 except under the authority of a licence.
3 Penalty for this subsection: a fine of $50 000.
4 159. Importing fauna
5 A person must not import fauna unless the person has lawful
6 authority to import it.
7 Penalty:
8 (a) if the offence involves a cetacean -- a fine of
9 $500 000;
10 (b) if the offence involves a critically endangered species
11 that is not a cetacean -- a fine of $500 000;
12 (c) if the offence involves an endangered species that is
13 not a cetacean -- a fine of $400 000;
14 (d) if the offence involves a vulnerable species that is not
15 a cetacean -- a fine of $300 000;
16 (e) if the offence involves specially protected fauna that
17 is not a cetacean -- a fine of $200 000;
18 (f) in any other case -- a fine of $50 000.
19 160. Exporting fauna
20 A person must not export fauna unless the person has lawful
21 authority to export it.
22 Penalty:
23 (a) if the offence involves a cetacean -- a fine of
24 $500 000;
25 (b) if the offence involves a critically endangered species
26 that is not a cetacean -- a fine of $500 000;
27 (c) if the offence involves an endangered species that is
28 not a cetacean -- a fine of $400 000;
29 (d) if the offence involves a vulnerable species that is not
30 a cetacean -- a fine of $300 000;
page 101
Biodiversity Conservation Bill 2015
Part 10 Fauna and flora
Division 1 Protection of fauna
s. 161
1 (e) if the offence involves specially protected fauna that
2 is not a cetacean -- a fine of $200 000;
3 (f) in any other case -- a fine of $50 000.
4 161. Injured or abandoned fauna
5 (1) In this section --
6 temporarily care for means --
7 (a) in the case of injured fauna -- to care for the fauna until
8 it recovers from injury, sickness or disease; or
9 (b) in the case of abandoned fauna -- to care for the fauna
10 until it is able to fend for itself.
11 (2) Sections 149(1), 152(1) and 153(1) do not operate to prohibit a
12 person from --
13 (a) capturing, rescuing or receiving injured fauna or
14 abandoned fauna; or
15 (b) temporarily caring for injured fauna or abandoned
16 fauna; or
17 (c) delivering injured fauna or abandoned fauna to another
18 person who has lawful authority to temporarily care for
19 it; or
20 (d) doing a combination of the things mentioned in
21 paragraphs (a) to (c).
22 (3) The regulations may --
23 (a) exclude prescribed fauna or fauna of a prescribed class
24 from the operation of subsection (2); and
25 (b) prohibit a person from temporarily caring for injured
26 fauna, or abandoned fauna, of a prescribed species
27 except under the authority of a licence; and
28 (c) require a person to notify the CEO within a prescribed
29 period if the person possesses --
30 (i) injured fauna, or abandoned fauna, of a
31 prescribed species; or
page 102
Biodiversity Conservation Bill 2015
Fauna and flora Part 10
Protection of fauna Division 1
s. 162
1 (ii) injured fauna or abandoned fauna in
2 circumstances where the person knows or
3 reasonably suspects that the fauna was taken
4 without lawful authority;
5 and
6 (d) confer power on a wildlife officer to require a person
7 who possesses injured fauna or abandoned fauna to give
8 the fauna to the officer or to another person specified by
9 the officer within a period specified by the officer; and
10 (e) prohibit, control or regulate the release of injured fauna
11 or abandoned fauna and for that purpose may confer
12 power on the CEO to determine places in the State
13 where such fauna can or cannot be released; and
14 (f) prohibit, control or regulate any other matter relating to
15 the keeping or possession of injured fauna or abandoned
16 fauna.
17 (4) This section does not limit or otherwise affect the operation of
18 section 255(2) or (4).
19 162. Releasing fauna
20 (1) A person must not release fauna in any part of the State unless
21 the person has lawful authority to release it.
22 Penalty for this subsection: a fine of $20 000.
23 (2) It is a defence to a charge of an offence under subsection (1) to
24 prove that --
25 (a) the fauna had been taken in circumstances giving rise to
26 a defence under section 151(1) or (2) or in
27 circumstances beyond the control of the person charged;
28 and
29 (b) the release occurred in circumstances in which it was
30 reasonable to expect the fauna to be able to fend for
31 itself.
page 103
Biodiversity Conservation Bill 2015
Part 10 Fauna and flora
Division 1 Protection of fauna
s. 163
1 163. Managed fauna
2 (1) The regulations may provide that prescribed fauna or fauna of a
3 prescribed class is managed fauna for the purposes of any one or
4 more of sections 149, 152 and 153.
5 (2) Regulations made for the purposes of subsection (1) may --
6 (a) provide that prescribed fauna or fauna of a prescribed
7 class is managed fauna throughout the State or in a
8 prescribed part of the State; and
9 (b) prohibit, impose requirements or conditions in relation
10 to, or otherwise control or regulate, the taking,
11 disturbance, possession or disposal of managed fauna;
12 and
13 (c) confer power on wildlife officers to give directions, in
14 prescribed circumstances, prohibiting the taking,
15 disturbance, possession or disposal of managed fauna.
16 (3) Without limiting subsection (2)(b), regulations relating to the
17 disturbance of managed fauna may regulate the conduct of
18 people in the vicinity of managed fauna including the distance
19 to be kept between those people and managed fauna.
20 (4) This section does not authorise the making of regulations that
21 would allow the taking or disturbance of any native species of
22 duck, goose or quail for the purposes of sport or recreation.
23 (5) In subsection (4) --
24 purposes of sport or recreation includes either or both of those
25 purposes whether or not combined with the objective of taking
26 ducks, geese or quail for food.
27 (6) This section does not limit or otherwise affect the operation of
28 section 255(2) or (4).
page 104
Biodiversity Conservation Bill 2015
Fauna and flora Part 10
Protection of fauna Division 1
s. 164
1 164. Regulations: stranded or distressed fauna
2 (1) In this section --
3 closed area means an area of land that is closed in accordance
4 with the regulations;
5 responsible authority means a public authority that has the care,
6 control and management of land within a closed area.
7 (2) The regulations may --
8 (a) provide for the protection of fauna that is, or appears to
9 be, stranded or distressed; and
10 (b) regulate, control or prohibit the carrying out of any
11 activity in relation to such fauna; and
12 (c) provide for the closure of areas of land where such fauna
13 is, or is likely to be, located.
14 (3) Regulations made for the purposes of subsection (2)(c) --
15 (a) may, in the case of an area of land that is or includes
16 private land, require the consent of an owner or occupier
17 of the land to be obtained before the area is closed; and
18 (b) must provide for notification of the closure of an area of
19 land to be given to any relevant responsible authority as
20 soon as is practicable after the closure.
21 (4) Regulations made for the purposes of subsection (2)(c) may --
22 (a) confer power on the CEO to authorise the closure of
23 areas of land; and
24 (b) provide for the designation of closed areas by means of
25 notices, signs, barriers or other prescribed devices; and
26 (c) confer power on CALM Act officers to direct persons to
27 leave, or not to enter, a closed area; and
28 (d) prohibit persons from being in a closed area except with
29 the permission of a CALM Act officer.
30 (5) This section does not limit or otherwise affect the operation of
31 section 255(2) or (4).
page 105
Biodiversity Conservation Bill 2015
Part 10 Fauna and flora
Division 2 Protection of flora
s. 165
1 165. Humane destruction of fauna
2 A CALM Act officer who reasonably believes that any fauna is
3 suffering so severely that destroying it would be a humane thing
4 to do, may destroy the fauna in a humane manner.
5 Division 2 -- Protection of flora
6 Subdivision 1 -- Property in flora
7 166. Term used: flora
8 In this Subdivision --
9 flora does not include fish.
10 167. Property in flora
11 (1) The property in flora on Crown land is vested in the State.
12 (2) Subsection (1) does not apply to cultivated flora.
13 (3) The property in flora on Crown land ceases to be vested in the
14 State when it is taken by a person who has lawful authority to
15 take it.
16 168. Property remains vested in the State in certain cases
17 (1) Despite section 167(3), the property in flora taken under a
18 licence to take flora, or an authorisation under section 40, on
19 condition that flora propagated from the flora taken is to be
20 re-established on Crown land continues to be vested in the State
21 unless the Minister makes an order under subsection (3).
22 (2) Despite section 167(3), the property in flora taken under a
23 contract to which the Forest Products Act 2000 Part 8 applies
24 continues to be vested in the State until the flora is sold, and
25 payment for it is received by the Forest Products Commission,
26 under that Act.
page 106
Biodiversity Conservation Bill 2015
Fauna and flora Part 10
Protection of flora Division 2
s. 169
1 (3) The Minister may, by order, declare that the property in flora of
2 a kind referred to in subsection (1) ceases to be vested in the
3 State.
4 (4) An order made under subsection (3) must specify the time at
5 which property ceases to be vested in the State.
6 (5) Section 258 applies to an order made under subsection (3).
7 169. Flora propagated from taken flora
8 Flora propagated from other flora that has been taken is the
9 property of the State if the other flora --
10 (a) was taken without lawful authority; or
11 (b) is the property of the State under section 168.
12 170. No compensation
13 The provisions of this Subdivision do not entitle any person to
14 compensation.
15 Subdivision 2 -- Protection provisions
16 171. Taking flora
17 (1) A person must not take flora on Crown land unless the
18 person --
19 (a) is engaged in clearing that does not involve the
20 commission of an offence under the Environmental
21 Protection Act 1986 section 51C; or
22 (b) otherwise has lawful authority to take it.
23 Penalty for this subsection:
24 (a) if the offence involves specially protected flora -- a
25 fine of $200 000;
26 (b) in any other case -- a fine of $50 000.
page 107
Biodiversity Conservation Bill 2015
Part 10 Fauna and flora
Division 2 Protection of flora
s. 172
1 (2) A person must not take flora on private land unless the person is
2 an owner or occupier of the land or is authorised in the
3 prescribed way to take it by an owner or occupier of the land.
4 Penalty for this subsection:
5 (a) if the offence involves specially protected flora -- a
6 fine of $200 000;
7 (b) in any other case -- a fine of $50 000.
8 (3) Subsections (1) and (2) do not apply if the flora is --
9 (a) threatened flora; or
10 (b) cultivated flora; or
11 (c) sandalwood.
12 172. Taking sandalwood
13 (1) A person must not take sandalwood on Crown land or private
14 land unless the person --
15 (a) is engaged in clearing that does not involve the
16 commission of an offence under the Environmental
17 Protection Act 1986 section 51C; or
18 (b) otherwise has lawful authority to take it.
19 Penalty for this subsection: a fine of $200 000.
20 (2) For the purposes of subsection (1), a person does not have
21 lawful authority to take sandalwood on private land by reason
22 only of being --
23 (a) an owner or occupier of the land; or
24 (b) a person authorised by an owner or occupier of the land
25 to take the sandalwood.
page 108
Biodiversity Conservation Bill 2015
Fauna and flora Part 10
Protection of flora Division 2
s. 173
1 173. Taking threatened flora
2 (1) A person must not take threatened flora on Crown land unless
3 the person is authorised under section 40 to take it and complies
4 with the conditions, if any, to which the authorisation is subject.
5 Penalty for this subsection:
6 (a) if the offence involves a critically endangered
7 species -- a fine of $500 000;
8 (b) if the offence involves an endangered species -- a
9 fine of $400 000;
10 (c) if the offence involves a vulnerable species -- a fine
11 of $300 000.
12 (2) A person must not take threatened flora on private land unless
13 the person --
14 (a) is an owner or occupier of the land or is authorised in
15 the prescribed way to take it by an owner or occupier of
16 the land; and
17 (b) is authorised under section 40 to take it and complies
18 with the conditions, if any, to which the authorisation is
19 subject.
20 Penalty for this subsection:
21 (a) if the offence involves a critically endangered
22 species -- a fine of $500 000;
23 (b) if the offence involves an endangered species -- a
24 fine of $400 000;
25 (c) if the offence involves a vulnerable species -- a fine
26 of $300 000.
27 (3) Subsections (1) and (2) do not apply if the threatened flora is
28 cultivated flora.
page 109
Biodiversity Conservation Bill 2015
Part 10 Fauna and flora
Division 2 Protection of flora
s. 174
1 174. Defences to charges under s. 171, 172 and 173
2 (1) It is a defence to a charge of an offence under section 171(1)
3 or (2), other than an offence involving specially protected flora,
4 to prove that the taking --
5 (a) occurred in the course of a lawful activity the sole or
6 dominant purpose of which was not to take flora; and
7 (b) could not reasonably have been avoided.
8 (2) It is a defence to a charge of an offence under section 171(1)
9 or (2) involving specially protected flora or an offence under
10 section 172(1) or 173(1) or (2) to prove that --
11 (a) the taking --
12 (i) occurred in the course of a lawful activity the
13 sole or dominant purpose of which was not to
14 take flora; and
15 (ii) could not reasonably have been avoided;
16 and
17 (b) the person charged did not know, and could not
18 reasonably have known, that the specially protected
19 flora, sandalwood or threatened flora concerned was
20 present.
21 (3) The defence in subsection (2) is not available in relation to a
22 charge of an offence under section 173(1) or (2) if the taking
23 has resulted in the threatened flora becoming eligible for listing
24 as an extinct species.
25 175. Use of prohibited device or prohibited method when taking
26 flora
27 (1) A person must not use any prohibited device or prohibited
28 method in the taking of flora.
29 Penalty for this subsection: a fine of $50 000.
page 110
Biodiversity Conservation Bill 2015
Fauna and flora Part 10
Protection of flora Division 2
s. 176
1 (2) An occupier of land must not allow any prohibited device or
2 prohibited method to be used in the taking of flora on the land.
3 Penalty for this subsection: a fine of $50 000.
4 176. Supplying flora
5 (1) A person must not supply flora except under the authority of a
6 licence.
7 Penalty for this subsection:
8 (a) if the offence involves a critically endangered
9 species -- a fine of $500 000;
10 (b) if the offence involves an endangered species -- a
11 fine of $400 000;
12 (c) if the offence involves a vulnerable species -- a fine
13 of $300 000;
14 (d) if the offence involves specially protected flora or
15 sandalwood -- a fine of $200 000;
16 (e) in any other case -- a fine of $50 000.
17 (2) It is a defence to a charge of an offence under subsection (1) to
18 prove that the person charged lawfully acquired the flora and
19 supplied it as a gift.
20 177. Dealing in flora
21 (1) A person must not deal in flora except under the authority of a
22 licence.
23 Penalty for this subsection:
24 (a) if the offence involves a critically endangered
25 species -- a fine of $500 000;
26 (b) if the offence involves an endangered species -- a
27 fine of $400 000;
28 (c) if the offence involves a vulnerable species -- a fine
29 of $300 000;
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Division 2 Protection of flora
s. 178
1 (d) if the offence involves specially protected flora or
2 sandalwood -- a fine of $200 000;
3 (e) in any other case -- a fine of $50 000.
4 (2) For the purposes of subsection (1), a person deals in flora if the
5 person conducts a business that involves the purchase or supply
6 of flora.
7 178. Processing flora
8 (1) In this section --
9 flora does not include forest products taken under a contract to
10 which the Forest Products Act 2000 Part 8 applies unless those
11 forest products are sandalwood.
12 (2) A person must not process flora for a commercial purpose
13 except under the authority of a licence.
14 Penalty for this subsection:
15 (a) if the offence involves a critically endangered
16 species -- a fine of $500 000;
17 (b) if the offence involves an endangered species -- a
18 fine of $400 000;
19 (c) if the offence involves a vulnerable species -- a fine
20 of $300 000;
21 (d) if the offence involves specially protected flora or
22 sandalwood -- a fine of $200 000;
23 (e) in any other case -- a fine of $50 000.
24 (3) A person must not operate a flora processing establishment
25 except under the authority of a licence.
26 Penalty for this subsection: a fine of $50 000.
27 179. Exporting flora
28 A person must not export flora unless the flora --
29 (a) was taken by a person who had lawful authority to take
30 it; or
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s. 180
1 (b) was supplied to the person by another person who had
2 lawful authority to supply it.
3 Penalty:
4 (a) if the offence involves a critically endangered
5 species -- a fine of $500 000;
6 (b) if the offence involves an endangered species -- a
7 fine of $400 000;
8 (c) if the offence involves a vulnerable species -- a fine
9 of $300 000;
10 (d) if the offence involves specially protected flora or
11 sandalwood -- a fine of $200 000;
12 (e) in any other case -- a fine of $50 000.
13 180. Additional penalty for offence involving sandalwood
14 (1) If a court convicts a person of an offence under this Division or
15 the regulations that involves sandalwood, the court may order
16 the offender to pay an additional penalty of an amount
17 calculated at the rate of the prescribed amount per tonne, or part
18 of a tonne, of sandalwood involved in the offence.
19 (2) The court must not make an order under subsection (1) unless
20 the prosecutor applies for the order.
21 (3) The amount prescribed by the regulations for the purposes of
22 subsection (1) cannot exceed $20 000.
23 Division 3 -- Taking or disturbance by Aboriginal people
24 181. Terms used
25 In this Division --
26 Aboriginal customary purpose means --
27 (a) preparing or consuming food customarily eaten by
28 Aboriginal persons; or
29 (b) preparing or using medicine customarily used by
30 Aboriginal persons; or
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Division 3 Taking or disturbance by Aboriginal people
s. 182
1 (c) engaging in artistic, ceremonial or other cultural
2 activities customarily engaged in by Aboriginal persons;
3 or
4 (d) engaging in activities incidental to a purpose stated in
5 paragraph (a), (b) or (c);
6 Aboriginal person means a person wholly or partly descended
7 from the original inhabitants of Australia;
8 CALM Act land means --
9 (a) land, or land and waters, listed in the CALM Act
10 section 5; and
11 (b) land that, under the CALM Act section 8C, is under the
12 management of the CEO; and
13 (c) land to which the CALM Act section 131 applies;
14 exclusive native title, in relation to an area of land or waters,
15 means native title rights and interests (as defined in the NT Act
16 section 223) --
17 (a) that exist in relation to the area, whether or not they
18 have been determined under the NT Act to exist; and
19 (b) that confer possession, occupation, use and enjoyment
20 of the area on the holders of the native title rights and
21 interests to the exclusion of all others;
22 exclusive native title holder, for an area in relation to which
23 exclusive native title exists, means --
24 (a) the registered native title body corporate (as defined in
25 the NT Act section 253) in respect of the native title
26 rights and interests concerned; or
27 (b) if there is no such body corporate, each person who
28 holds the native title rights and interests concerned or a
29 person acting with the authority of each such person;
30 NT Act means the Native Title Act 1993 (Commonwealth).
31 182. Taking or disturbance for Aboriginal customary purposes
32 (1) This section does not affect the operation of the CALM Act.
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Taking or disturbance by Aboriginal people Division 3
s. 182
1 (2) It is a defence to a charge of an offence under this Act of taking
2 fauna or flora to prove --
3 (a) the accused is an Aboriginal person; and
4 (b) the accused took the fauna or flora for an Aboriginal
5 customary purpose; and
6 (c) in taking the fauna or flora the accused complied
7 with --
8 (i) section 156(1) or 175(1), as the case requires;
9 and
10 (ii) any regulations that restrict or exclude the
11 operation of this subsection;
12 and
13 (d) if the offence is alleged to have been committed on land
14 other than CALM Act land, the person who has control
15 or management of the land consented to the taking of the
16 fauna or flora; and
17 (e) if the offence is alleged to have been committed in an
18 area in relation to which exclusive native title exists, the
19 accused either --
20 (i) held the exclusive native title alone or with other
21 persons; or
22 (ii) took the fauna or flora with the permission of the
23 exclusive native title holder for the area.
24 (3) It is a defence to a charge of an offence under this Act of
25 disturbing fauna to prove --
26 (a) the accused is an Aboriginal person; and
27 (b) the accused disturbed the fauna for an Aboriginal
28 customary purpose; and
29 (c) in disturbing the fauna the accused complied with --
30 (i) section 156(1); and
31 (ii) any regulations that restrict or exclude the
32 operation of this subsection; and
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Division 3 Taking or disturbance by Aboriginal people
s. 183
1 (d) if the offence is alleged to have been committed on land
2 other than CALM Act land, the person who has control
3 or management of the land consented to the disturbance
4 of the fauna; and
5 (e) if the offence is alleged to have been committed in an
6 area in relation to which exclusive native title exists, the
7 accused either --
8 (i) held the exclusive native title alone or with other
9 persons; or
10 (ii) disturbed the fauna with the permission of the
11 exclusive native title holder for the area.
12 (4) If, but for this subsection, the defence provided by
13 subsection (2) or (3) would entitle an Aboriginal person to do an
14 act that is inconsistent with the continued existence, enjoyment
15 or exercise of any native title rights and interests (as defined in
16 the NT Act section 223) held by another Aboriginal person, the
17 defence does not apply to that act unless it is proved the accused
18 did the act in order to obtain fauna or flora sufficient only for
19 food for the accused and the accused's family, but not for sale.
20 (5) The defences provided by subsections (2) and (3) are in addition
21 to the defences provided by sections 151(1) and (2), 153(3)
22 and (4) and 174(1) and (2).
23 183. Possessing fauna taken for Aboriginal customary purposes
24 If fauna is taken in circumstances giving rise to a defence under
25 section 182(2), an Aboriginal person is authorised to possess the
26 fauna for an Aboriginal customary purpose.
27 184. Selling fauna or flora taken for Aboriginal customary
28 purposes
29 An Aboriginal person who takes fauna or flora for an
30 Aboriginal customary purpose must not sell the fauna or flora,
31 or any part of it, unless, under the regulations, the sale is
32 excepted or the person is authorised or licensed to do so.
33 Penalty: a fine of $10 000.
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Taking or disturbance by Aboriginal people Division 3
s. 185
1 185. Permission given by exclusive native title holder to take or
2 disturb fauna
3 (1) In this section --
4 disturbance means the doing of anything referred to in
5 paragraph (a)(i), (ii) or (iii) of the definition of disturb in
6 section 5(1);
7 taking means the doing of anything referred to in
8 paragraph (a)(i) of the definition of take in section 5(1).
9 (2) If the exclusive native title holder for an area in relation to
10 which exclusive native title exists permits the taking or
11 disturbance of fauna in the area, the exclusive native title holder
12 does not commit an offence under this Act by reason of giving
13 the permission.
14 (3) Subsection (2) applies despite any other provision of this Act.
15 186. Regulations: restriction or exclusion of s. 182(2) or (3)
16 (1) The regulations may restrict or exclude the operation of
17 section 182(2) by reference to any of, or a combination of, the
18 following --
19 (a) the fauna or flora taken;
20 (b) the class of person taking the fauna or flora;
21 (c) the time of taking;
22 (d) the place of taking;
23 (e) the manner of taking;
24 (f) the quantity of fauna or flora taken;
25 (g) the circumstances of the taking.
26 (2) The regulations may restrict or exclude the operation of
27 section 182(3) by reference to any of, or a combination of, the
28 following --
29 (a) the fauna disturbed;
30 (b) the class of person disturbing the fauna;
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Division 4 Other matters
s. 187
1 (c) the time of disturbance;
2 (d) the place of disturbance;
3 (e) the manner of disturbance;
4 (f) the quantity of fauna disturbed;
5 (g) the circumstances of the disturbance.
6 Division 4 -- Other matters
7 187. Orders limiting quantity of sandalwood taken
8 (1) In this section --
9 sandalwood does not include sandalwood that is cultivated
10 flora;
11 specified, in relation to an order made under subsection (2),
12 means specified in the order;
13 taken means taken in the State, whether on Crown land or
14 private land.
15 (2) The Minister may, by order --
16 (a) fix the maximum quantity of sandalwood that can be
17 taken in a specified period; and
18 (b) fix the maximum quantity of sandalwood that can be
19 taken in a specified part of the specified period.
20 (3) An order made under subsection (2) may provide that it applies,
21 or does not apply, to --
22 (a) sandalwood of a specified kind; or
23 (b) sandalwood taken in specified circumstances.
24 (4) Before making an order under subsection (2), or amending or
25 repealing such an order, the Minister must consult with the
26 Minister responsible for the administration of the Forest
27 Products Act 2000.
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Other matters Division 4
s. 188
1 (5) If an order under subsection (2) is in force, the CEO must
2 ensure that --
3 (a) the total quantity of sandalwood that is authorised by
4 licence under this Act to be taken in the specified period
5 does not exceed the maximum quantity fixed in the
6 order for that period; and
7 (b) the total quantity of sandalwood that is authorised by
8 licence under this Act to be taken in a specified part of
9 the specified period does not exceed the maximum
10 quantity fixed in the order for that part of that period.
11 (6) In subsection (5) --
12 sandalwood means sandalwood to which the order applies.
13 (7) Section 258 applies to an order made under subsection (2).
14 188. Regulations: charges for fauna and flora
15 (1) The regulations may impose charges in respect of --
16 (a) prescribed fauna taken for a commercial purpose on any
17 land; and
18 (b) prescribed flora taken for a commercial purpose on
19 Crown land.
20 (2) Regulations made for the purposes of subsection (1) are to --
21 (a) prescribe the amount of the charges or the method to be
22 used to calculate them; and
23 (b) prescribe the persons liable to pay the charges; and
24 (c) make provision for the collection of the charges.
25 (3) Regulations made for the purposes of subsection (1) may
26 provide that charges are payable irrespective of whether or not
27 there was lawful authority for the taking of the fauna or flora to
28 which the charges relate.
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Division 4 Other matters
s. 189
1 (4) Without limiting the Interpretation Act 1984 section 43(8)(d)
2 or 45, regulations made for the purposes of subsection (1)
3 may --
4 (a) impose different charges for different fauna or flora or
5 different categories or classes of fauna or flora; and
6 (b) specify circumstances in which charges are not payable;
7 and
8 (c) provide for the issue by the CEO of identifiers for
9 application to fauna or flora to indicate that charges
10 have been paid or are not payable; and
11 (d) provide for the circumstances in which, and by whom,
12 identifiers mentioned in paragraph (c) are to be applied
13 to fauna or flora; and
14 (e) provide for the recovery of unpaid charges and prohibit
15 conduct by which the payment of charges might be
16 evaded; and
17 (f) confer powers on wildlife officers to seize and sell,
18 dispose of or otherwise deal with fauna or flora in
19 circumstances where a charge payable in respect of the
20 fauna or flora has not been paid.
21 189. Operation of The Criminal Code s. 417 not affected
22 This Act does not prevent The Criminal Code section 417
23 operating in respect of fauna or flora reasonably suspected of
24 having been taken otherwise than as authorised by or under this
25 Act.
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Nature-based tourism and recreation Part 11
s. 190
1 Part 11 -- Nature-based tourism and recreation
2 190. Terms used
3 In this Part --
4 aquatic eco-tourism has the meaning given in the Fish
5 Resources Management Act 1994 section 4(1);
6 commercial operator means a person who conducts an activity
7 or provides a service for a commercial purpose;
8 nature-based tourism and recreation means activities or
9 services relating to the enjoyment or viewing of, or interaction
10 with, native species and their habitats.
11 191. Issue of codes of practice
12 (1) The Minister may issue a code of practice for the purpose of
13 providing guidance in relation to nature-based tourism and
14 recreation on land that is not CALM Act land.
15 (2) A code of practice issued under this section may incorporate by
16 reference any other code or subsidiary legislation as existing or
17 in force from time to time or as existing or in force at a
18 particular time.
19 (3) The Minister may amend or revoke a code of practice issued
20 under this section.
21 (4) The CEO must publish a notice in the Gazette giving details of
22 the issue, amendment or revocation of a code of practice under
23 this section.
24 (5) A code of practice issued under this section is not subsidiary
25 legislation for the purposes of the Interpretation Act 1984.
26 192. Approval of codes of practice
27 (1) The Minister may approve a code of practice issued under
28 another written law, or issued by a tourism industry body or
29 other person, if the Minister considers that the code is
30 appropriate for the purpose mentioned in section 191(1).
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s. 193
1 (2) A code of practice may be approved as existing or in force from
2 time to time or as existing or in force at a particular time.
3 (3) A code of practice approved under this section may consist of
4 any code, standard, rule, specification or provision relating to
5 the purpose mentioned in section 191(1).
6 (4) The Minister may approve a revision of the whole or any part of
7 a code of practice approved under this section.
8 (5) The Minister may revoke the approval of a code of practice.
9 (6) The CEO must publish a notice in the Gazette giving details of
10 the approval, revision, or revocation of approval, of a code of
11 practice under this section.
12 (7) A code of practice approved under this section is not subsidiary
13 legislation for the purposes of the Interpretation Act 1984.
14 193. Regulations: nature-based tourism and recreation
15 (1) The regulations may provide for the control and management of
16 nature-based tourism and recreation on land that is not CALM
17 Act land.
18 (2) Subsection (1) does not extend to the control and management
19 of aquatic eco-tourism.
20 (3) Regulations made for the purposes of subsection (1) may --
21 (a) limit, or provide for the limitation of, the number of
22 persons who may visit or use a particular place for the
23 purposes of nature-based tourism and recreation if the
24 visit or use is, or is likely to be, detrimental to native
25 species or their habitats; and
26 (b) regulate commercial operators involved in nature-based
27 tourism and recreation; and
28 (c) regulate the activities or services that commercial
29 operators referred to in paragraph (b) conduct or
30 provide; and
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s. 194
1 (d) place restrictions on the number of licences that may be
2 issued under this Act in respect of nature-based tourism
3 and recreation --
4 (i) of a particular kind; or
5 (ii) at a particular place.
6 (4) This section does not limit or otherwise affect the operation of
7 section 255(2) or (4).
8 194. Consultation
9 (1) In this section --
10 code of practice means a code of practice referred to in
11 section 191 or 192.
12 (2) Before a code of practice is issued or approved, or regulations
13 referred to in section 193 are made, the Minister must consult
14 with the following --
15 (a) the Minister responsible for the administration of the
16 Western Australian Tourism Commission Act 1983;
17 (b) tourism industry bodies;
18 (c) any other person or body who or which appears to the
19 Minister to be likely to be affected by, or interested in,
20 the code of practice or regulations, as the case requires.
21 (3) Without limiting subsection (2), if a code of practice is to
22 contain provisions relating to aquatic eco-tourism, the Minister
23 must consult with the Minister responsible for the
24 administration of the Fish Resources Management Act 1994
25 before the code of practice is issued or approved.
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Part 12 Inspection and compliance
Division 1 Preliminary
s. 195
1 Part 12 -- Inspection and compliance
2 Division 1 -- Preliminary
3 195. Terms used
4 In this Part, unless the contrary intention appears --
5 dwelling means a place or a part of a place that is ordinarily
6 used for human habitation and it does not matter that it is from
7 time to time uninhabited;
8 entry warrant means an entry warrant issued under Division 3;
9 inspection purposes means the purposes referred to in
10 section 198;
11 instrument includes any of the following --
12 (a) a biodiversity conservation covenant;
13 (b) an environmental pest notice;
14 (c) a habitat conservation notice;
15 (d) a licence;
16 (e) an exemption under this Act;
17 licensed premises means any place or vehicle in respect of
18 which a licence or exemption is in force under this Act;
19 occupier --
20 (a) in relation to a place -- includes any person who has or
21 appears to have the control or management of the place;
22 and
23 (b) in relation to a vehicle -- includes any person who is or
24 appears to be in charge of the vehicle;
25 offence means an offence under this Act;
26 photograph includes to make a digital image or a moving visual
27 record;
28 reasonably suspects has the meaning given in section 196;
29 thing relevant to an offence has the meaning given in
30 section 197.
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Inspection and related functions Division 2
s. 196
1 196. Reasonably suspects: meaning
2 For the purposes of this Part, a person reasonably suspects
3 something at a relevant time if the person personally has
4 grounds at the time for suspecting the thing and those grounds
5 (even if they are subsequently found to be false or non-existent),
6 when judged objectively, are reasonable.
7 197. Thing relevant to an offence: meaning
8 (1) For the purposes of this Part, a thing is a thing relevant to an
9 offence if it is reasonably suspected that --
10 (a) the thing has been, is being, or is intended to be used for
11 the purpose of committing an offence; or
12 (b) the thing has been obtained by the commission of an
13 offence; or
14 (c) an offence has been, is being, or may be committed in
15 respect of the thing; or
16 (d) the thing is or may afford --
17 (i) evidence relevant to proving the commission of
18 an offence or who committed an offence; or
19 (ii) evidence that tends to rebut an alibi.
20 (2) For the purposes of this Part, a thing relevant to an offence may
21 be material or non-material, animate (other than human) or
22 inanimate.
23 Division 2 -- Inspection and related functions
24 198. Purposes for which inspection may be carried out
25 A wildlife officer may carry out an inspection for one or more
26 of the following purposes --
27 (a) to search for or inspect any organism, ecological
28 community, habitat or potential carrier or anything else
29 prohibited, controlled, regulated or managed under this
30 Act;
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Division 2 Inspection and related functions
s. 199
1 (b) to ascertain whether this Act or any instrument entered
2 into, given or issued under it is being contravened;
3 (c) to inspect any records that are kept under or for the
4 purposes of this Act or that are relevant to determining
5 whether this Act or any instrument entered into, given or
6 issued under it is being contravened;
7 (d) any other purpose that is prescribed.
8 199. Power to enter places
9 (1) For inspection purposes a wildlife officer may do one or more
10 of the following --
11 (a) at any time enter licensed premises (including a
12 dwelling);
13 (b) at any time enter a place that is not a dwelling;
14 (c) at any time enter a dwelling with the informed consent
15 of an occupier of the dwelling;
16 (d) enter a place in accordance with an entry warrant.
17 (2) For the purposes of subsection (1)(c), an occupier gives
18 informed consent if the occupier consents after being informed
19 by the wildlife officer --
20 (a) of the powers that the wildlife officer wants to exercise
21 in respect of the dwelling; and
22 (b) of the reason why the wildlife officer wants to exercise
23 those powers; and
24 (c) that the person can refuse to consent to the wildlife
25 officer entering the dwelling.
26 200. Power to enter includes power to enter some other places
27 (1) This section applies if under section 199 a wildlife officer may
28 enter a place.
29 (2) If the place is one of 2 or more premises in one building, then,
30 in order to enter the place, the wildlife officer may enter, but not
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Inspection and related functions Division 2
s. 201
1 inspect, any part of the building that the occupiers of the
2 premises use exclusively but in common with each other.
3 (3) If subsection (2) does not apply and the wildlife officer
4 reasonably suspects that in order to enter the place it is
5 necessary to enter another place, the wildlife officer may enter,
6 but not inspect, the other place.
7 201. Power to stop and enter vehicles and ancillary powers
8 (1) For inspection purposes a wildlife officer may at any time stop
9 and enter a vehicle other than a mobile home.
10 (2) If under subsection (1) a wildlife officer may stop a vehicle, the
11 officer may use any means that are reasonably necessary in the
12 circumstances to do so, including means that obstruct the
13 passage of other vehicles.
14 (3) Subsection (2) does not authorise the use of means that are
15 likely to cause death or grievous bodily harm to any person,
16 whether or not in a vehicle.
17 (4) A wildlife officer who under subsection (1) stops a vehicle
18 may --
19 (a) detain the vehicle for a reasonable period; and
20 (b) move the vehicle to a place suitable for carrying out an
21 inspection.
22 202. Application of CI Act s. 31
23 The CI Act section 31 (the applied provision) applies, with all
24 necessary changes, to and in relation to the entry of a place
25 under section 199(1)(a), (b) or (d) or 200 or a vehicle under
26 section 201 as if references in the applied provision to --
27 (a) a place included references to a vehicle; and
28 (b) an occupier included references to a person in charge of
29 a vehicle; and
30 (c) an officer were references to a wildlife officer; and
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Division 2 Inspection and related functions
s. 203
1 (d) a search warrant were references to an entry warrant;
2 and
3 (e) a search were references to an inspection.
4 203. Other powers related to inspection
5 For inspection purposes a wildlife officer may do one or more
6 of the following --
7 (a) take onto or into, and use on or in, a place or vehicle any
8 equipment or facilities that are reasonably necessary in
9 order to carry out an inspection;
10 (b) make reasonable use of any equipment, facilities or
11 services on or in a place or vehicle in order to carry out
12 an inspection and for that purpose operate the equipment
13 or facilities;
14 (c) remain on or in a place or vehicle for so long as is
15 reasonably necessary to carry out an inspection;
16 (d) inspect and open any package, compartment, cupboard
17 or container of any kind, and inspect its contents;
18 (e) inspect any cage, enclosure or similar structure on or in
19 a place or vehicle;
20 (f) photograph or otherwise make a record of a place or
21 vehicle and any thing in or on the place or vehicle;
22 (g) restrain, muster, round up, yard, draft or otherwise move
23 or handle any animal;
24 (h) patrol and inspect any fence on or bounding a place;
25 (i) take samples or specimens of or from organisms,
26 ecological communities, habitats, potential carriers,
27 water or soil;
28 (j) apply an identifier to any organism;
29 (k) survey and mark out land for any purpose relevant to
30 carrying out an inspection;
31 (l) label any thing.
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Inspection and compliance Part 12
Inspection and related functions Division 2
s. 204
1 204. Obtaining records
2 (1) In this section --
3 relevant record means a record that --
4 (a) contains information about the storage, handling,
5 transport, possession, supply, use or distribution of an
6 organism or potential carrier or anything else prohibited,
7 controlled, regulated or managed under this Act; or
8 (b) is required to be kept under this Act; or
9 (c) contains information that is relevant to compliance with
10 this Act or with an instrument entered into, issued or
11 given under it.
12 (2) For inspection purposes a wildlife officer may do one or more
13 of the following --
14 (a) direct a person who has the custody or control of a
15 record to give the wildlife officer the record or a copy of
16 it;
17 (b) direct a person who has the custody or control of a
18 record, computer or thing to make or print out a copy of
19 the record or to operate the computer or thing;
20 (c) operate a computer or other thing on which a record is
21 or may be stored;
22 (d) direct a person who is or appears to be in control of a
23 record that the wildlife officer reasonably suspects is a
24 relevant record to give the wildlife officer a translation,
25 code, password or other information necessary to gain
26 access to or interpret and understand the record;
27 (e) take extracts from or make copies of, or download or
28 print out, or photograph a record that the wildlife officer
29 reasonably suspects is a relevant record;
30 (f) take reasonable measures to secure or protect a record,
31 or computer or other thing on which a record is or may
32 be stored, against damage or unauthorised removal or
33 interference.
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Division 2 Inspection and related functions
s. 205
1 (3) If a wildlife officer is given a record, the wildlife officer must, if
2 practicable, allow a person who is otherwise entitled to
3 possession of it to have reasonable access to it.
4 205. Directions
5 (1) In this section --
6 specified means specified by the wildlife officer.
7 (2) A wildlife officer may do one or more of the following --
8 (a) for inspection purposes direct an occupier of a place or
9 vehicle, or a person who is or appears to be in
10 possession or control of a thing, to give to the wildlife
11 officer, orally or in writing --
12 (i) any information in the person's possession or
13 control as to the name and address of the owner
14 of the place, vehicle or thing; and
15 (ii) any other information in the person's possession
16 or control that is relevant to an inspection;
17 (b) for inspection purposes direct a person who is or appears
18 to be in possession or control of an organism or potential
19 carrier to give the wildlife officer any information in the
20 person's possession or control as to the name and
21 address of any person from whom the organism or
22 potential carrier or to whom a similar organism or
23 potential carrier has been supplied;
24 (c) for inspection purposes direct an occupier of a place or
25 vehicle to answer questions;
26 (d) for inspection purposes direct an occupier of a place or
27 vehicle to produce a specified thing or a thing of a
28 specified kind;
29 (e) for inspection purposes direct an occupier of a place or
30 vehicle to open or unlock any thing in or on the place or
31 vehicle to which the wildlife officer requires access;
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1 (f) direct an occupier of a place or vehicle to give the
2 wildlife officer a plan, or access to a plan, of the place or
3 vehicle;
4 (g) direct an occupier of a place or vehicle, or a person who
5 is or appears to be in possession or control of a thing, to
6 give the wildlife officer any assistance that the wildlife
7 officer reasonably needs to carry out the wildlife
8 officer's functions in relation to the place, vehicle or
9 thing;
10 (h) direct an occupier of a vehicle to move the vehicle to a
11 specified place for inspection or treatment;
12 (i) direct a person who is or could be carrying an organism
13 or potential carrier to go to a specified place for
14 inspection or treatment;
15 (j) direct a person who is or appears to be in control of a
16 consignment of goods or a potential carrier to move the
17 consignment or potential carrier to a specified place for
18 inspection or treatment;
19 (k) direct a person who is or appears to be in control of an
20 organism to do anything necessary to identify the
21 organism;
22 (l) direct a person who is or appears to be in control of an
23 animal to restrain, muster, round up, yard, draft or
24 otherwise move or handle the animal or to remove the
25 animal to a specified place for inspection or treatment;
26 (m) direct a person who is or appears to be in control of any
27 goods, vehicle, package or container to label it;
28 (n) direct a person who is or appears to be in control of an
29 organism, potential carrier or other thing prohibited,
30 controlled, regulated or managed under this Act to keep
31 that organism, potential carrier or other thing in the
32 possession of that person until further directed by the
33 wildlife officer;
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1 (o) direct a person who is or appears to be in control of an
2 organism, potential carrier or other thing prohibited,
3 controlled, regulated or managed under this Act to leave
4 that organism, potential carrier or other thing at a
5 specified place until further directed by the wildlife
6 officer.
7 (3) If a person does not comply with a direction under
8 subsection (2)(h), (i), (j) or (l) the wildlife officer may do
9 anything the wildlife officer considers necessary to achieve, so
10 far as is practicable, the purpose of the direction.
11 (4) Without limiting subsection (3) or section 201(4)(b), a wildlife
12 officer may move a vehicle to achieve the purpose of the
13 direction.
14 206. Seizure of thing relevant to an offence
15 (1) If a wildlife officer when exercising a power under this Division
16 finds a thing relevant to an offence, the wildlife officer may,
17 subject to subsection (2), seize the thing.
18 (2) The wildlife officer may seize the thing only if the wildlife
19 officer reasonably suspects one or more of the following --
20 (a) that the thing has been unlawfully obtained;
21 (b) that possession of the thing at that time and place by the
22 person in possession of it is unlawful;
23 (c) that it is necessary to seize the thing for one or more of
24 the following purposes --
25 (i) to prevent it from being concealed, damaged,
26 destroyed, interfered with or lost;
27 (ii) to preserve its evidentiary value;
28 (iii) to do a forensic examination on it under
29 section 209;
30 (iv) to prevent it from being used in the commission
31 of another offence.
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1 (3) The CI Act sections 147 to 151 apply, with all necessary
2 changes, to and in relation to --
3 (a) the seizure of a thing under this section; and
4 (b) a thing that may be seized under this section; and
5 (c) a thing seized under this section.
6 (4) The form prescribed for the CI Act section 147(1), as applied by
7 subsection (3), may be adapted as necessary for the purposes of
8 this section.
9 207. Dealing with seized thing
10 (1) In this section --
11 deal with includes to preserve, to treat, to sell, to give away, to
12 use and to destroy.
13 (2) If under section 206 or in the exercise of powers under the
14 CI Act, a wildlife officer seizes a thing and, in the opinion of the
15 wildlife officer, the thing is likely to suffer, deteriorate or perish
16 if no action is taken to deal with it, the wildlife officer may deal
17 with the thing in accordance with the directions of the CEO.
18 (3) Unless subsection (5) applies, the proceeds of the sale of a thing
19 under subsection (2), after deduction of the expenses of and
20 incidental to the sale, are to be credited to the Consolidated
21 Account.
22 (4) Subsection (5) applies if --
23 (a) under section 206 or in the exercise of powers under the
24 CI Act a thing is seized in connection with an offence;
25 and
26 (b) the thing is sold under subsection (2); and
27 (c) a decision is subsequently made not to commence a
28 prosecution in respect of the offence or, after the
29 prosecution has been completed, no person is convicted
30 of the offence.
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1 (5) The proceeds of the sale of the thing, after deduction of the
2 expenses of and incidental to the sale, are to be paid to the
3 person entitled to possession of the thing before it was seized.
4 208. Dealing with seized live fauna
5 (1) If under section 206 or in the exercise of powers under the
6 CI Act, a wildlife officer seizes live fauna and, in the opinion of
7 the wildlife officer, it is not practicable to keep the fauna, the
8 wildlife officer may release the fauna into the wild.
9 (2) The power in subsection (1) is not to be exercised in
10 circumstances where the wildlife officer reasonably suspects
11 that another person is entitled to possession of the fauna.
12 209. Forensic examination
13 (1) In this section --
14 do a forensic examination, on a sample, specimen or other
15 thing, means to do any or all of the following --
16 (a) to examine or operate it;
17 (b) to photograph, measure or otherwise make a record of it;
18 (c) to take an impression of it;
19 (d) to take samples of or from it;
20 (e) to do tests on it, or on any sample taken under
21 paragraph (d), for forensic purposes.
22 (2) If a wildlife officer takes a sample or specimen under
23 section 203(i) the wildlife officer may do a forensic examination
24 on it or arrange for a forensic examination to be done on it.
25 (3) If a wildlife officer, when exercising a power under this
26 Division, finds a thing that may be seized under section 206,
27 then whether or not the wildlife officer seizes the thing, the
28 wildlife officer may do a forensic examination on it or arrange
29 for a forensic examination to be done on it.
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1 (4) If it is reasonably necessary to do so in order to do a forensic
2 examination, the sample, specimen or thing may be dismantled,
3 damaged or destroyed.
4 (5) The power in subsection (3) must not be exercised in relation to
5 a thing that may contain information that is privileged, as that
6 term is defined in the CI Act section 151(1), until under that
7 section (as applied by section 206(3) of this Act) --
8 (a) a decision is made that the information is not privileged;
9 or
10 (b) orders have been made to enable the power to be
11 exercised.
12 Division 3 -- Entry warrants
13 210. Applying for entry warrant
14 (1) A wildlife officer may apply to a JP for an entry warrant
15 authorising the entry of a place or vehicle for inspection
16 purposes.
17 (2) A wildlife officer may apply for an entry warrant for a place or
18 vehicle even if, under Division 2, a wildlife officer may enter
19 the place or vehicle without an entry warrant.
20 (3) The application must be made in accordance with section 211
21 and must include the prescribed information, if any.
22 211. Making an application
23 (1) In this section --
24 application means an application under section 210;
25 remote communication means any way of communicating at a
26 distance including by telephone, fax, email and radio.
27 (2) A reference in this section to making an application includes a
28 reference to giving information in support of the application.
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s. 212
1 (3) An application must be made in person before a JP unless --
2 (a) the warrant is needed urgently; and
3 (b) the applicant reasonably suspects that a JP is not
4 available within a reasonable distance of the applicant.
5 (4) If subsection (3)(a) and (b) apply --
6 (a) the application may be made to the JP by remote
7 communication; and
8 (b) the JP may grant the application only if satisfied about
9 the matters in subsection (3)(a) and (b).
10 (5) An application must be made in writing unless --
11 (a) the application is made by remote communication; and
12 (b) it is not practicable to send the JP written material.
13 (6) If subsection (5)(a) and (b) apply --
14 (a) the application may be made orally; and
15 (b) the JP must make a written record of the application and
16 any information given in support of it.
17 (7) An application must be made on oath unless --
18 (a) the application is made by remote communication; and
19 (b) it is not practicable for the JP to administer an oath to
20 the applicant.
21 (8) If subsection (7)(a) and (b) apply --
22 (a) the application may be made in an unsworn form; and
23 (b) if the JP issues an entry warrant, the applicant must as
24 soon as is practicable send the JP an affidavit verifying
25 the application and any information given in support
26 of it.
27 212. Further provisions relating to application for entry warrant
28 (1) If, on an application made by remote communication under
29 section 211 a JP issues an entry warrant, the JP must, if
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s. 213
1 practicable, send a copy of the original warrant to the applicant
2 by remote communication, but otherwise --
3 (a) the JP must send the applicant by remote
4 communication any information that must be set out in
5 the warrant; and
6 (b) the applicant must complete a form of warrant with the
7 information received and give the JP a copy of the form
8 as soon as is practicable after doing so; and
9 (c) the JP must attach the copy of the form to the original
10 warrant and any affidavit received from the applicant
11 and make them available for collection by the applicant.
12 (2) The copy of the original warrant sent, or the form of the warrant
13 completed, as the case may be, under subsection (1) has the
14 same force and effect as the original warrant.
15 (3) If an applicant contravenes section 211(8)(b) or
16 subsection (1)(b), any evidence obtained under the entry warrant
17 is not admissible in proceedings in a court.
18 213. Issuing entry warrant
19 (1) A JP may issue an entry warrant if satisfied that it is necessary
20 for a wildlife officer to enter a place or vehicle for inspection
21 purposes.
22 (2) An entry warrant must contain the following information --
23 (a) a reasonably particular description of the place or
24 vehicle to which it relates;
25 (b) a reasonably particular description of the inspection
26 purpose for which entry to the place or vehicle is
27 required;
28 (c) the period, not exceeding 30 days, during which it may
29 be executed;
30 (d) the name of the JP who issued it;
31 (e) the date and time when it was issued.
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1 (3) If a JP refuses to issue an entry warrant, the JP must record on
2 the application the fact of, the date and time of, and the reasons
3 for, the refusal.
4 214. Effect of entry warrant
5 (1) An entry warrant has effect according to its contents and this
6 section.
7 (2) An entry warrant comes into force when it is issued by a JP.
8 (3) An entry warrant authorises the wildlife officer executing the
9 warrant, during the period of the warrant --
10 (a) to enter the place or vehicle described in the warrant;
11 and
12 (b) to exercise the powers conferred by Division 2.
13 215. Execution of entry warrant
14 (1) An entry warrant may be executed by the wildlife officer to
15 whom it is issued or by any other wildlife officer.
16 (2) A wildlife officer executing an entry warrant must, at the
17 reasonable request of a person apparently in charge of the place
18 or vehicle, produce the warrant.
19 Division 4 -- Remedial action
20 216. Term used: relevant instrument
21 In this Division --
22 relevant instrument means --
23 (a) a biodiversity conservation covenant; or
24 (b) an environmental pest notice; or
25 (c) a habitat conservation notice.
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1 217. CEO may take remedial action
2 (1) If, in the opinion of the CEO, a relevant instrument has been
3 contravened, the CEO may take any action (remedial action)
4 the CEO considers necessary to ensure compliance with it.
5 (2) Without limiting subsection (1), remedial action may include --
6 (a) stopping anything that is being done in contravention of
7 the instrument; and
8 (b) doing anything required by the instrument to be done
9 that has not been done; and
10 (c) carrying out work that is necessary to remedy anything
11 done in contravention of the instrument; and
12 (d) doing anything incidental to action referred to in
13 paragraph (a), (b) or (c).
14 (3) For the purposes of taking remedial action a wildlife officer
15 may --
16 (a) enter on land with or without vehicles, plant and
17 equipment; and
18 (b) remain on that land for as long as is necessary to
19 complete the remedial action.
20 (4) The power in subsection (3)(a) must not be exercised unless --
21 (a) the consent of an owner or occupier of the land has been
22 obtained; or
23 (b) an owner or occupier of the land has been given
24 reasonable notice of the proposed entry and has not
25 objected to the entry; or
26 (c) the entry is in accordance with an entry warrant.
27 (5) Division 3 applies, with all necessary changes, in relation to
28 applications for, and the issue and execution of, entry warrants
29 for the purposes of subsection (4)(c).
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1 (6) Without limiting subsection (5), references in Division 3 to
2 inspection purposes are to be taken to include the purposes of
3 remedial action.
4 218. Notice required before remedial action
5 The CEO must not take remedial action unless --
6 (a) the CEO has given a person bound by the relevant
7 instrument a written notice --
8 (i) stating that in the opinion of the CEO the
9 instrument has been contravened; and
10 (ii) giving details of the action necessary to comply
11 with the instrument; and
12 (iii) informing the person that if the instrument is not
13 complied with within the period specified in the
14 notice the CEO may take remedial action;
15 and
16 (b) the relevant instrument has not been complied with
17 within the period referred to in paragraph (a)(iii).
18 219. Recovery of costs of remedial action
19 (1) The CEO may recover the reasonable costs incurred in taking
20 remedial action from a person bound by the relevant instrument
21 in a court of competent jurisdiction as a debt due to the State.
22 (2) If more than one person is bound by the relevant instrument,
23 each of those persons is jointly and severally liable for the costs
24 referred to in subsection (1).
25 Division 5 -- Other provisions
26 220. Time and place for compliance with direction
27 A wildlife officer may specify the date and time when, and
28 place where, a direction given under this Act must be complied
29 with.
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s. 221
1 221. Direction may be given orally or in writing
2 (1) A direction under this Act may be given by a wildlife officer
3 orally or in writing.
4 (2) A direction that is given orally must be confirmed in writing
5 within 5 business days after it is given, unless within that period
6 it is complied with or cancelled.
7 (3) Failure to comply with subsection (2) does not invalidate the
8 direction.
9 222. Exercise of power may be recorded
10 A wildlife officer may record the exercise of a power under this
11 Act, including by making an audiovisual recording.
12 223. Assistance to exercise powers
13 (1) A wildlife officer exercising a power under this Act may
14 authorise as many other persons to assist in exercising the
15 power as are reasonably necessary in the circumstances.
16 (2) A person who under subsection (1) is authorised by a wildlife
17 officer to assist in exercising a power must obey any lawful and
18 reasonable direction given to the person by the wildlife officer
19 when assisting in exercising the power.
20 (3) For the purposes of section 273, a person who assists in
21 exercising a power under this Act having been authorised by a
22 wildlife officer to do so is to be taken to be performing a
23 function under this Act.
24 (4) The protection from liability given to a person because of the
25 operation of subsection (3) does not extend to anything done or
26 omitted to be done by the person in contravention of a lawful
27 and reasonable direction referred to in subsection (2).
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1 224. Use of force
2 (1) When exercising a power under this Act a wildlife officer, and
3 any person assisting a wildlife officer, may use any force
4 against any person or thing that is reasonably necessary in the
5 circumstances --
6 (a) to exercise the power; and
7 (b) to overcome any resistance to exercising the power that
8 is offered, or that the wildlife officer reasonably
9 suspects will be offered, by any person.
10 (2) However, if the use of force is likely to cause significant
11 damage to property, a wildlife officer or person assisting a
12 wildlife officer is not entitled to use force unless the CEO has,
13 in the particular case, given the wildlife officer prior written
14 authorisation to do so.
15 (3) Any use of force under this section against a person is subject to
16 The Criminal Code Chapter XXVI.
17 225. Evidence obtained improperly
18 (1) This section applies if in the purported exercise of a power
19 conferred by this Act or by an entry warrant issued or
20 purportedly issued under this Act --
21 (a) a thing relevant to an offence is seized or obtained; and
22 (b) a requirement of this Act in relation to exercising the
23 power or issuing the entry warrant, including a
24 requirement that arises before or after the exercise of the
25 power or the issue of the entry warrant, is contravened.
26 (2) Any evidence derived from the thing seized or obtained or from
27 the exercise of the power is not admissible in any criminal
28 proceedings against a person in a court unless --
29 (a) the person does not object to the admission of the
30 evidence; or
31 (b) the court decides otherwise under subsection (3).
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1 (3) The court may nevertheless decide to admit the evidence if it is
2 satisfied that the desirability of admitting the evidence
3 outweighs the undesirability of admitting the evidence.
4 (4) In making a decision under subsection (3) the court must take
5 into account each of the following --
6 (a) any objection to the evidence being admitted by the
7 person against whom the evidence may be given;
8 (b) the seriousness of the offence in respect of which the
9 evidence is relevant;
10 (c) the seriousness of any contravention of this Act in
11 obtaining the evidence;
12 (d) whether any contravention of this Act in obtaining the
13 evidence --
14 (i) was intentional or reckless; or
15 (ii) arose from an honest and reasonable mistake of
16 fact;
17 (e) the probative value of the evidence;
18 (f) any other matter the court thinks fit.
19 (5) The probative value of the evidence does not by itself justify its
20 admission.
21 226. Compliance with directions
22 (1) A person must not contravene a direction given to the person by
23 a wildlife officer under this Act.
24 Penalty for this subsection: a fine of $10 000.
25 (2) It is a defence to a charge of an offence under subsection (1) to
26 prove that the person charged had a reasonable excuse.
27 227. False or misleading information
28 (1) A person must not give false or misleading information to a
29 wildlife officer who is carrying out a function under this Act.
30 Penalty for this subsection: a fine of $10 000.
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1 (2) For the purposes of subsection (1), a person gives false or
2 misleading information to a wildlife officer if the person does
3 one or more of the following --
4 (a) states anything to the wildlife officer that the person
5 knows is false or misleading in a material particular;
6 (b) omits from a statement made to a wildlife officer
7 anything without which the statement is, to the person's
8 knowledge, misleading in a material particular;
9 (c) gives or produces any record or other document to the
10 wildlife officer that --
11 (i) the person knows is false or misleading in a
12 material particular; or
13 (ii) omits anything without which the record or other
14 document is, to the person's knowledge,
15 misleading in a material particular.
16 228. Obstruction of wildlife officer
17 A person must not obstruct a wildlife officer or a person
18 assisting a wildlife officer in the exercise or attempted exercise
19 of a power under this Act.
20 Penalty: a fine of $20 000.
21 229. Self-incrimination not an excuse
22 (1) An individual is not excused from complying with a direction
23 under this Act to provide information or answer questions, or to
24 produce any record or thing, on the ground that the information,
25 answer, record or thing might incriminate the individual or
26 make the individual liable to a penalty.
27 (2) However, any information or answer provided, or document or
28 thing produced, by an individual in compliance with a direction
29 under this Act is not admissible in evidence in any proceedings
30 against the individual other than proceedings for perjury or an
31 offence against section 227.
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s. 230
1 230. Orders for forfeiture or disposal of seized things
2 (1) In this section --
3 seized thing means a thing seized --
4 (a) under section 206; or
5 (b) under the CI Act in the exercise of powers in respect of
6 an offence under this Act.
7 (2) A court that convicts a person of an offence under this Act may
8 make an order for the forfeiture to the State, or the destruction
9 or disposal, of a seized thing if the court is satisfied that the
10 thing was the subject of, used in, or otherwise involved in, the
11 commission of the offence.
12 231. Application of Criminal and Found Property Disposal
13 Act 2006
14 The Criminal and Found Property Disposal Act 2006 applies to
15 and in respect of --
16 (a) any thing seized under section 206 unless the thing is
17 dealt with under section 207(2) or 208(1); and
18 (b) any thing forfeited under section 230.
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Division 1 General provisions relating to offences
s. 232
1 Part 13 -- Legal proceedings
2 Division 1 -- General provisions relating to offences
3 232. Who can commence prosecution
4 A prosecution for an offence under this Act may be commenced
5 only by the CEO or a person authorised to do so by the CEO.
6 233. Time for commencing prosecution
7 (1) A prosecution for an offence under this Act must be
8 commenced within 3 years after the day on which the offence is
9 alleged to have been committed.
10 (2) Despite subsection (1), if a prosecution notice alleging an
11 offence under this Act specifies the day on which evidence of
12 the alleged offence first came to the attention of a person who
13 has authority to commence the prosecution --
14 (a) the prosecution may be commenced within 3 years after
15 that day; and
16 (b) the prosecution notice need not contain particulars of the
17 day on which the offence is alleged to have been
18 committed.
19 (3) The day on which evidence first came to the attention of a
20 person who has authority to commence the prosecution is, in the
21 absence of proof to the contrary, the day specified in the
22 prosecution notice.
23 234. Attempt, incitement or accessory after the fact
24 (1) In this section --
25 accessory after the fact to an offence has the meaning given in
26 The Criminal Code section 10.
27 (2) The Criminal Code section 555A applies to an offence under
28 this Act as if it were a simple offence under that Code.
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s. 235
1 (3) A person who becomes an accessory after the fact to an offence
2 under this Act (the principal offence) commits an offence and is
3 liable on conviction to the penalty to which a person convicted
4 of the principal offence is liable.
5 235. Penalties for continuing offences
6 For the purposes of the Interpretation Act 1984 section 71, in
7 relation to an offence committed under this Act, the penalty for
8 each separate and further offence committed by a person is a
9 fine of $5 000.
10 236. Court may cancel or suspend licence
11 (1) If a court convicts a person of an offence under this Act, the
12 court may, in addition to any other penalty it imposes in relation
13 to the offence, cancel, or suspend for any period, any licence
14 held by the person.
15 (2) A court must not cancel or suspend a licence under
16 subsection (1) unless the prosecutor applies for its cancellation
17 or suspension.
18 Division 2 -- Responsibility of certain persons
19 237. Liability of officers of body corporate for offence by body
20 (1) In this section --
21 officer, in relation to a body corporate, has the meaning given in
22 the Corporations Act 2001 (Commonwealth) section 9.
23 (2) This section applies to an offence under --
24 (a) section 48(1), 65(1), 140(1), 150(1) or 173(1) or (2); or
25 (b) section 152(1), 153(1), 157(1), 158(2), 159 or 160 if the
26 offence involves a cetacean or threatened fauna; or
27 (c) section 176(1), 177(1), 178(2) or 179 if the offence
28 involves threatened flora; or
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Division 2 Responsibility of certain persons
s. 238
1 (d) a provision of the regulations that is prescribed for the
2 purposes of this section.
3 (3) If a body corporate is guilty of an offence to which this section
4 applies, an officer of the body corporate is also guilty of the
5 offence if the officer failed to take all reasonable steps to
6 prevent the commission of the offence by the body corporate.
7 (4) In determining whether things done or omitted to be done by the
8 officer constitute reasonable steps, a court must have regard
9 to --
10 (a) what the officer knew, or ought to have known, about
11 the commission of the offence by the body corporate;
12 and
13 (b) whether the officer was in a position to influence the
14 conduct of the body corporate in relation to the
15 commission of the offence; and
16 (c) any other relevant matter.
17 238. Further provisions relating to liability of officers of body
18 corporate
19 (1) Section 237 does not affect the liability of a body corporate for
20 any offence.
21 (2) Section 237 does not affect the liability of an officer of a body
22 corporate, or any other person, under The Criminal Code
23 Chapters II, LVII, LVIII and LIX.
24 (3) An officer of a body corporate may be charged with, and
25 convicted of, an offence in accordance with section 237 whether
26 or not the body corporate is charged with, or convicted of, the
27 principal offence committed by the body corporate.
28 (4) If an officer of a body corporate who is charged with an offence
29 in accordance with section 237 claims that the body corporate
30 would have a defence if it were charged with the offence --
31 (a) the onus of proving the defence is on the officer; and
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s. 239
1 (b) the standard of proof required is the standard that would
2 apply to the body corporate in relation to the defence.
3 (5) Subsection (4) does not limit any other defence available to the
4 officer.
5 239. Liability of partners
6 (1) In this section --
7 offence means an offence under this Act committed or alleged
8 to have been committed in the course of the activities of the
9 relevant partnership.
10 (2) If a licence is granted in respect of a partnership each partner
11 has the same rights and duties as a licensee, whether or not the
12 partner is named in the licence.
13 (3) If a person (partner A) who is a partner in a partnership is
14 charged with an offence, every other person who was a partner
15 at the time of the alleged offence may also be charged with the
16 offence.
17 (4) If a person (partner B) is charged as permitted by subsection (3)
18 and partner A is convicted of the offence, partner B is to be
19 taken to have also committed the offence, subject to
20 subsection (7).
21 (5) If a person (partner C) who is a partner in a partnership
22 commits an offence then, although partner C is not charged with
23 the offence, every other person who was a partner at the time
24 the offence was committed may be charged with the offence.
25 (6) If a person (partner D) is charged as permitted by subsection (5)
26 and it is proved that partner C committed the offence, partner D
27 is to be taken to have also committed the offence, subject to
28 subsection (7).
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s. 240
1 (7) If under this section a person is charged with an offence it is a
2 defence to prove that --
3 (a) the offence was committed without the person's consent
4 or connivance; and
5 (b) the person took all the measures to prevent the
6 commission of the offence that the person could
7 reasonably be expected to have taken having regard to
8 the person's functions and to all the circumstances.
9 240. Liability of principals for offence by agent
10 (1) If a person (the agent) acting, otherwise than as an employee,
11 for or on behalf of another person (the principal) is charged
12 with an offence under this Act, the principal may also be
13 charged with the offence.
14 (2) If a principal is charged as permitted by subsection (1) and the
15 agent is convicted of the offence, the principal is to be taken to
16 have also committed the offence, subject to subsection (5).
17 (3) If a person (the agent) acting, otherwise than as an employee,
18 for or on behalf of another person (the principal) commits an
19 offence under this Act, then, although the agent is not charged
20 with the offence, the principal may be charged with the offence.
21 (4) If a principal is charged as permitted by subsection (3) and it is
22 proved that the agent committed the offence, the principal is to
23 be taken to have also committed the offence, subject to
24 subsection (5).
25 (5) If under this section a principal is charged with an offence it is a
26 defence to prove that --
27 (a) the offence was committed without the principal's
28 consent or connivance; and
29 (b) the principal took all the measures to prevent the
30 commission of the offence that the principal could
31 reasonably be expected to have taken having regard to
32 all the circumstances.
page 150
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Responsibility of certain persons Division 2
s. 241
1 241. Liability of employers for offence by employee
2 (1) If an employee of another person (the employer) is charged as
3 an employee with an offence under this Act, the employer may
4 also be charged with the offence whether or not the employee
5 acted without the employer's authority or contrary to the
6 employer's orders or instructions.
7 (2) If an employer is charged as permitted by subsection (1) and the
8 employee is convicted of the offence, the employer is to be
9 taken to have also committed the offence, subject to
10 subsection (5).
11 (3) If an employee of another person (the employer) commits an
12 offence under this Act as an employee, then, although the
13 employee is not charged with the offence, the employer may be
14 charged with the offence whether or not the employee acted
15 without the employer's authority or contrary to the employer's
16 orders or instructions.
17 (4) If an employer is charged as permitted by subsection (3) and it
18 is proved that the employee committed the offence, the
19 employer is to be taken to have also committed the offence,
20 subject to subsection (5).
21 (5) If under this section an employer is charged with an offence it is
22 a defence to prove that --
23 (a) the offence was committed without the employer's
24 consent or connivance; and
25 (b) the employer took all the measures to prevent the
26 commission of the offence that the employer could
27 reasonably be expected to have taken having regard to
28 all the circumstances.
page 151
Biodiversity Conservation Bill 2015
Part 13 Legal proceedings
Division 3 Remediation orders
s. 242
1 Division 3 -- Remediation orders
2 242. Terms used
3 In this Division --
4 environmental damage means damage to a habitat or a
5 threatened ecological community;
6 relevant offence means an offence under section 48(1), 149(1),
7 150(1), 156, 171(1) or (2), 172(1), 173(1) or (2) or 175;
8 remediation measures means measures to repair, control or
9 mitigate environmental damage caused by the commission of a
10 relevant offence including measures involving the
11 re-establishment and maintenance of vegetation;
12 remediation order means an order under section 243(1);
13 specified, in relation to a remediation order, means specified in
14 the order.
15 243. Making a remediation order
16 (1) If a court convicts a person of a relevant offence, the court may
17 order the offender --
18 (a) to take specified remediation measures within a
19 specified time; or
20 (b) to pay to the CEO or any other specified person within a
21 specified time an amount of money set by the court as
22 compensation for costs reasonably incurred by the CEO
23 or other person in taking remediation measures.
24 (2) An application for a remediation order must be made in
25 accordance with the regulations.
26 (3) A remediation order may be made by a court on its own
27 initiative or on the application of the prosecutor.
28 (4) A court that makes a remediation order may make any other
29 order that is necessary to give effect to the remediation order.
page 152
Biodiversity Conservation Bill 2015
Legal proceedings Part 13
Remediation orders Division 3
s. 244
1 244. Limitation on making remediation order: damage to habitat
2 on private land
3 A court must not make a remediation order in respect of
4 environmental damage consisting of damage to habitat on
5 private land if --
6 (a) the offender, at the time of the relevant offence, was an
7 owner or occupier of the private land; and
8 (b) the relevant offence did not involve a threatened species,
9 threatened ecological community or critical habitat.
10 245. Enforcement of remediation order under s. 243(1)(a)
11 (1) If the CEO considers that a remediation order made under
12 section 243(1)(a) has been contravened, the CEO may apply to
13 the court that made the remediation order for an order under
14 subsection (3).
15 (2) The application must be made in accordance with the
16 regulations.
17 (3) After considering the application, the court may --
18 (a) amend the remediation order; or
19 (b) cancel the remediation order and make an order under
20 section 243(1)(b); or
21 (c) dismiss the application.
22 246. Enforcement of remediation order under s. 243(1)(b)
23 (1) If the amount payable to a person under a remediation order
24 made under section 243(1)(b) is not paid within the specified
25 time, the person may enforce the order by lodging a certified
26 copy of it in a court of competent jurisdiction.
27 (2) When lodged, the remediation order is to be taken to be a
28 judgment of the court and may be enforced accordingly.
29 (3) No fee is to be charged for a certified copy of the remediation
30 order or for lodging it.
page 153
Biodiversity Conservation Bill 2015
Part 13 Legal proceedings
Division 4 Evidentiary provisions
s. 247
1 Division 4 -- Evidentiary provisions
2 247. Terms used
3 In this Division --
4 authorisation means a licence, approval, consent or other
5 authorisation under this Act;
6 exemption means an exemption under this Act;
7 offence means an offence under this Act;
8 specified, in relation to a certificate or prosecution notice,
9 means specified in the certificate or prosecution notice, as the
10 case requires.
11 248. Presumption as to identity of alleged offender
12 In proceedings for an offence, if the name of the accused in the
13 prosecution notice for the offence is the name given by the
14 alleged offender at the time of, or immediately following, the
15 occurrence giving rise to the offence, the accused is, in the
16 absence of proof to the contrary, to be taken to be the alleged
17 offender.
18 249. Presumption as to place of offence
19 In proceedings for an offence, an allegation in the prosecution
20 notice that an act occurred on land of a particular description
21 (for example, Crown land or private land), is, on the act being
22 proved and in the absence of proof to the contrary, to be taken
23 to be proved.
24 250. Evidence as to authority or status
25 In proceedings for an offence, an allegation in the prosecution
26 notice of any of the following matters is, in the absence of proof
27 to the contrary, to be taken to be proved --
28 (a) that the prosecutor is authorised to commence the
29 prosecution;
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Evidentiary provisions Division 4
s. 251
1 (b) that on a specified day or during a specified period a
2 specified person was or was not the holder of an
3 authorisation;
4 (c) that on a specified day or during a specified period a
5 specified person was or was not authorised to do a
6 specified thing under an authorisation;
7 (d) that on a specified day or during a specified period a
8 specified place, vehicle or other thing was or was not the
9 subject of an authorisation or exemption;
10 (e) that on a specified day or during a specified period a
11 specified person was or was not the subject of an
12 authorisation or exemption;
13 (f) that on a specified day or during a specified period an
14 authorisation or exemption was cancelled, suspended or
15 for any other reason of no effect;
16 (g) that on a specified day or during a specified period an
17 authorisation or exemption was subject to a specified
18 condition;
19 (h) that on a specified day or during a specified period a
20 person was the owner or occupier of specified land;
21 (i) that on a specified day or during a specified period a
22 person was a wildlife officer or a person assisting a
23 wildlife officer;
24 (j) that on a specified day or during a specified period a
25 person held a specified office.
26 251. Evidence as to type of organism, species, ecological
27 community or habitat
28 In proceedings for an offence, an allegation in the prosecution
29 notice of any of the following matters is, in the absence of proof
30 to the contrary, to be taken to be proved --
31 (a) that on a specified day or during a specified period a
32 specified animal or other organism was fauna;
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Part 13 Legal proceedings
Division 4 Evidentiary provisions
s. 252
1 (b) that on a specified day or during a specified period a
2 specified plant or other organism was flora;
3 (c) that on a specified day or during a specified period a
4 specified native species was a specially protected
5 species or a specially protected species listed in a
6 specified category;
7 (d) that on a specified day or during a specified period a
8 specified native species was a threatened species or a
9 threatened species listed in a specified category;
10 (e) that on a specified day or during a specified period a
11 specified ecological community was a threatened
12 ecological community or a threatened ecological
13 community listed in a specified category;
14 (f) that on a specified day or during a specified period a
15 specified habitat was a critical habitat;
16 (g) that on a specified day or during a specified period a
17 specified species was an environmental pest for a
18 specified area.
19 252. Evidence of scientific matters
20 (1) In this section --
21 authorised person means a person declared under
22 subsection (2) to be an authorised person.
23 (2) The Minister may, by notice published in the Gazette, declare a
24 person who, in the opinion of the Minister, has relevant
25 scientific knowledge to be an authorised person for the purposes
26 of this section.
27 (3) In proceedings for an offence, production of a certificate
28 purporting to be signed by an authorised person and stating that
29 on a specified day or during a specified period --
30 (a) a specified thing was an animal of a specified class or
31 description; or
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Evidentiary provisions Division 4
s. 253
1 (b) a specified thing was a plant of a specified class or
2 description; or
3 (c) a specified animal, plant or other organism belonged to a
4 specified species or taxonomic grouping of species; or
5 (d) a specified species was a native species; or
6 (e) a specified thing or place was an ecological community,
7 a habitat or other biodiversity component; or
8 (f) a specified thing was a potential carrier,
9 is, without proof of the authorised person's signature, evidence
10 of the facts stated in the certificate.
11 (4) Subsection (3) only applies if --
12 (a) at least 14 days before the hearing, written notice has
13 been given to the accused of the prosecutor's intention
14 to produce the certificate and of the content of the
15 certificate; and
16 (b) the accused has not, within 7 days of receipt of the
17 notice, delivered to the prosecutor a notice requiring that
18 the authorised person's evidence be given in person.
19 (5) The court before which proceedings are held may, in addition to
20 making any other order as to costs, make such order as it thinks
21 fit as to the expenses and remuneration to be paid for the
22 services of the authorised person.
23 253. Evidence as to authorisations, notices and other documents
24 (1) Subsection (2) applies to the following documents --
25 (a) an authorisation;
26 (b) an exemption;
27 (c) a notice given under this Act;
28 (d) a code or other document that has been adopted under
29 the regulations.
30 (2) In proceedings for an offence, production of a copy of a
31 document to which this subsection applies certified by the CEO
page 157
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Part 13 Legal proceedings
Division 4 Evidentiary provisions
s. 254
1 as a true copy as at any date or during any period is proof of the
2 contents of the document as at that date or during that period.
3 (3) In the absence of proof to the contrary, it is to be presumed that
4 a document purporting to have been signed by the Minister, the
5 CEO or a wildlife officer was signed by a person who at the
6 time was the Minister, the CEO or a wildlife officer, as the case
7 requires.
8 254. Provisions in addition to Evidence Act 1906
9 This Division is in addition to and does not affect the operation
10 of the Evidence Act 1906.
page 158
Biodiversity Conservation Bill 2015
Regulations, orders and guidelines Part 14
Regulations Division 1
s. 255
1 Part 14 -- Regulations, orders and guidelines
2 Division 1 -- Regulations
3 255. Regulations: general power
4 (1) The Governor may make regulations prescribing matters --
5 (a) required or permitted by this Act to be prescribed; or
6 (b) necessary or convenient to be prescribed for giving
7 effect to the purposes of this Act.
8 (2) Without limiting subsection (1), the regulations may provide
9 for, prohibit, control, impose requirements in relation to, or
10 otherwise regulate all or any of the matters referred to in
11 Schedule 1.
12 (3) Terms used in Schedule 1 item 13 that are defined in the
13 EPBC Act have the same meaning in that item as they have in
14 that Act.
15 (4) The regulations may provide for offences against the regulations
16 and prescribe penalties for those offences not exceeding a fine
17 of $50 000.
18 256. Regulations: licensing
19 (1) The regulations are to establish a licensing scheme under which
20 the CEO may grant licences for the purposes of this Act.
21 (2) Regulations made for the purposes of subsection (1) may
22 provide for or regulate the following --
23 (a) the kinds or classes of licences that may be granted
24 including licences that confer exclusive or preferential
25 rights;
26 (b) applications for or in relation to licences, the persons
27 who are eligible to make applications and the manner in
28 which applications are to be dealt with;
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Biodiversity Conservation Bill 2015
Part 14 Regulations, orders and guidelines
Division 1 Regulations
s. 256
1 (c) requirements to be met by persons who make
2 applications for or in relation to licences including --
3 (i) requirements to produce information relevant to
4 an application;
5 (ii) requirements to undergo assessment or testing;
6 (iii) requirements as to training, qualifications and
7 experience;
8 (d) the grant, amendment, renewal or transfer of licences;
9 (e) fees payable in respect of the following --
10 (i) applications for or in relation to licences;
11 (ii) the grant, amendment, renewal or transfer of
12 licences;
13 (f) the imposition of conditions on licences, the kinds of
14 conditions that can be imposed and the consequences of
15 failing to comply with conditions;
16 (g) the duration of licences;
17 (h) the surrender, suspension or cancellation of licences;
18 (i) the content of licence documents;
19 (j) circumstances in which licence documents have to be
20 returned to the CEO;
21 (k) the issue by the CEO of guidelines in respect of
22 licensing matters;
23 (l) the review by the State Administrative Tribunal of
24 decisions to amend, suspend or cancel licences or to
25 refuse to grant, renew or transfer licences.
26 (3) Without limiting subsection (2)(f), the regulations may provide
27 for the imposition of the following conditions --
28 (a) a condition authorising bioprospecting activity that
29 requires the licence holder to enter into an arrangement
30 with the CEO or another person for the sharing of
31 profits;
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Biodiversity Conservation Bill 2015
Regulations, orders and guidelines Part 14
Regulations Division 1
s. 257
1 (b) a condition authorising the taking of fauna or flora that
2 restricts the quantity of fauna or flora that may be taken.
3 (4) Without limiting subsection (2)(i), the regulations may provide
4 for any licence or permit granted to a person under the
5 CALM Act to be included in a licence document issued to the
6 person under this Act.
7 (5) No person is entitled to the grant, renewal or transfer of a
8 licence as of right unless the regulations expressly provide
9 otherwise.
10 (6) If the regulations provide that a licence is transferable by the
11 licence holder then, in accordance with paragraph (d) of the
12 definition of licence in the Personal Property Securities
13 Act 2009 (Commonwealth) section 10, the licence is declared
14 not to be personal property for the purposes of that Act.
15 257. Regulations may adopt codes or legislation
16 (1) In this section --
17 code means a code, code of practice, standard, rule,
18 specification, administrative procedure, quality assurance
19 scheme or other document, published in or outside Australia by
20 any public authority or other person, including the Minister or
21 the CEO, that does not by itself have legislative effect in this
22 State;
23 subsidiary legislation includes rules, regulations, instructions,
24 local laws and by-laws.
25 (2) The regulations may adopt, either wholly or in part or with
26 modifications and either specifically or by reference --
27 (a) any code; or
28 (b) any subsidiary legislation made, determined or issued
29 under any other Act or under any Act of the
30 Commonwealth, another State or a Territory.
page 161
Biodiversity Conservation Bill 2015
Part 14 Regulations, orders and guidelines
Division 2 Orders
s. 258
1 (3) If the regulations adopt a code or subsidiary legislation, it is
2 adopted as existing or in force from time to time unless the
3 regulations prescribe that a particular text is adopted.
4 (4) Particulars of any code or subsidiary legislation adopted by the
5 regulations must be published on, or accessible through, the
6 Department's website.
7 Division 2 -- Orders
8 258. Orders made by Minister
9 (1) This section applies to an order made by the Minister under
10 another provision of this Act if the other provision states that it
11 so applies.
12 (2) An order to which this section applies is subsidiary legislation
13 for the purposes of the Interpretation Act 1984.
14 (3) The Minister must cause a copy of each of the following orders
15 to be laid before each House of Parliament as soon as is
16 practicable after the order is published in the Gazette --
17 (a) an order to which this section applies;
18 (b) an order amending or repealing an order referred to in
19 paragraph (a).
20 (4) Subsection (3) does not apply if the order is referred to in
21 section 259.
22 259. Certain orders subject to disallowance
23 The Interpretation Act 1984 section 42 applies to each of the
24 following orders as if the order were a regulation --
25 (a) an order made by the Minister under a provision of this
26 Act listed in the Table;
27 (b) an order amending or repealing an order referred to in
28 paragraph (a).
page 162
Biodiversity Conservation Bill 2015
Regulations, orders and guidelines Part 14
Guidelines Division 3
s. 260
1 Table
s. 9(1), (2), (3), (4) and (5) s. 10(1) and (2)
s. 132(1) s. 147(3)
s. 168(3) s. 187(2)
s. 271(2)
2 Division 3 -- Guidelines
3 260. Guidelines about listing
4 (1) The Minister may issue guidelines establishing criteria for, and
5 setting out other matters relevant to, the following --
6 (a) the listing of specially protected species under Part 2
7 Division 1 Subdivision 1;
8 (b) the listing of threatened species under Part 2 Division 1
9 Subdivision 2;
10 (c) the listing of extinct species under Part 2 Division 1
11 Subdivision 3;
12 (d) the listing of threatened ecological communities under
13 Part 2 Division 2;
14 (e) the listing of key threatening processes under Part 2
15 Division 3;
16 (f) the listing of critical habitats under Part 4 Division 1.
17 (2) Without limiting subsection (1), guidelines issued under this
18 section may provide for and in relation to --
19 (a) the making of nominations under section 38(1) relating
20 to threatened species or threatened ecological
21 communities; and
22 (b) the process for dealing with those nominations.
page 163
Biodiversity Conservation Bill 2015
Part 14 Regulations, orders and guidelines
Division 3 Guidelines
s. 261
1 261. Other guidelines
2 (1) The Minister may issue guidelines setting out matters that the
3 Minister considers to be of importance in respect of the
4 performance by the CEO or any other person of a function
5 under this Act.
6 (2) Guidelines issued under this section are intended --
7 (a) to assist the CEO and other persons in the performance
8 of functions under this Act; and
9 (b) to provide information to --
10 (i) any person or body that may be affected by
11 decisions under this Act; and
12 (ii) any person or body that has a special interest in
13 species or ecological communities that may be
14 affected by decisions under this Act or in
15 biodiversity conservation generally; and
16 (iii) the general community.
17 262. Publication, amendment and revocation of guidelines
18 (1) Guidelines issued under section 260 or 261 must be published in
19 the prescribed way.
20 (2) The Minister may at any time amend or revoke guidelines
21 issued under section 260 or 261.
22 (3) An amendment or revocation under subsection (2) must be
23 published in the prescribed way.
24 263. Guidelines to be taken into account
25 (1) In performing a function under this Act a person must take into
26 account guidelines issued under section 260 or 261 that relate to
27 the performance of the function.
28 (2) Nothing in subsection (1) --
29 (a) derogates from the person's duty to exercise the
30 person's discretion in a particular case; or
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Regulations, orders and guidelines Part 14
Guidelines Division 3
s. 264
1 (b) precludes the person from taking into account matters
2 not set out in guidelines; or
3 (c) requires the person to take into account guidelines that
4 are inconsistent with the provision of this Act that
5 confers the function.
6 264. Status of guidelines
7 (1) Guidelines issued under section 260 or 261 are not subsidiary
8 legislation for the purposes of the Interpretation Act 1984.
9 (2) If there is a conflict or inconsistency between a provision of this
10 Act and a provision of guidelines issued under section 260
11 or 261, the provision of this Act prevails.
page 165
Biodiversity Conservation Bill 2015
Part 15 Miscellaneous
Division 1 Documents
s. 265
1 Part 15 -- Miscellaneous
2 Division 1 -- Documents
3 265. Giving documents to CEO
4 A document required or authorised to be given under this Act to
5 the CEO may be given to the CEO --
6 (a) by lodging the document at a prescribed address; or
7 (b) by prepaid post addressed to the CEO; or
8 (c) if the regulations authorise service of the document
9 under this paragraph -- by faxing a copy of the
10 document to a fax number stated in the regulations; or
11 (d) if the regulations authorise service of the document
12 under this paragraph -- by sending electronic data from
13 which the document can be reproduced, in a prescribed
14 format, to a prescribed email address.
15 266. Giving documents generally
16 (1) A document required or authorised to be given under this Act to
17 a person other than the CEO may be given to the person by --
18 (a) giving it to the person personally; or
19 (b) leaving it at the person's place of residence or business;
20 or
21 (c) sending it by prepaid post (including document
22 exchange) addressed to the person --
23 (i) in accordance with the Interpretation Act 1984
24 section 75(1); or
25 (ii) at an address appearing on recent correspondence
26 addressed by or on behalf of the person to the
27 CEO or otherwise notified to the CEO or
28 published by the person; or
29 (iii) at an address shown in the rate book kept by a
30 local government under the Local Government
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Miscellaneous Part 15
Documents Division 1
s. 267
1 Act 1995 as the address for the service of rate
2 notices under that Act on that person;
3 or
4 (d) faxing it to a fax number, or emailing it to an email
5 address, provided by the person or appearing on recent
6 correspondence addressed by or on behalf of the person
7 to the CEO or otherwise notified to the CEO or
8 published by the person; or
9 (e) communicating it in some other way agreed with the
10 person.
11 (2) Where an address for service cannot be identified for the
12 purposes of subsection (1), the document may be given by
13 advertising the document at least twice in the prescribed way,
14 with an interval of at least one week between the
15 advertisements.
16 (3) The use of a particular method for giving a document to a
17 person does not prevent the giving of other documents to the
18 same person in a different way.
19 (4) Failure to properly give a document to one person does not
20 affect whether or not it was properly given to another person.
21 267. Giving documents to owner or occupier of land
22 (1) A document given to a person because the person is an owner or
23 occupier of land may be addressed to the person by the
24 description of "the owner" or "the occupier" of the relevant
25 land, describing it, without further name or description.
26 (2) If there are 2 or more owners or occupiers, a document is
27 sufficiently given to all of them if it is given to one of them, and
28 is addressed to that one with the addition of the words "and
29 others" or "and another", as the case requires.
30 (3) If a document is to be given to a person because the person is an
31 owner of land, the document may be given to the person by
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Biodiversity Conservation Bill 2015
Part 15 Miscellaneous
Division 1 Documents
s. 268
1 addressing it to the owner and giving it under section 266 to the
2 occupier, if any, of the land.
3 (4) If a document is to be given to a person because the person is an
4 owner or occupier of land, the document may be given to the
5 person by addressing it to the person and affixing it to a
6 conspicuous part of the land.
7 (5) Subsections (3) and (4) only apply if it is not reasonably
8 practicable to give the document in any of the ways provided for
9 in section 266 and this Act does not otherwise state how the
10 document is to be given.
11 268. Giving certain notices
12 (1) In this section --
13 notice means an environmental pest notice or a notice under
14 section 50(1).
15 (2) If for any reason it is not reasonably practicable to give a notice
16 to a person in accordance with section 266, the notice may be
17 given by publishing a copy of the notice in the prescribed way.
18 (3) A notice given under subsection (2) --
19 (a) may be directed to any number of owners or occupiers
20 of land; and
21 (b) is to be taken to be given to the owner and occupier of
22 any land specified in the notice.
23 269. Time when document given
24 (1) Except where a document is sent by post to an address outside
25 the State, given personally, or the contrary is proved, a
26 document is taken to be given on the business day following the
27 day on which the document was sent by post, faxed or emailed
28 to, or left for, the person to whom it was addressed.
29 (2) A document sent by post to an address within Australia but
30 outside the State is taken to be given on the 5th business day
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Miscellaneous Part 15
Other matters Division 2
s. 270
1 after the day on which the document was sent to the person to
2 whom it is addressed.
3 (3) A document sent by post to an address outside Australia is taken
4 to be given on the 10th business day after the day on which the
5 document was sent to the person to whom it is addressed.
6 270. Defects in document
7 A document is not ineffective, nor is it to be regarded as having
8 been not properly given, only because of an error,
9 misdescription, or irregularity in the document or the way it is
10 addressed that is not likely to mislead or does not in fact
11 mislead.
12 Division 2 -- Other matters
13 271. Exemptions from Act
14 (1) In this section --
15 specified, in relation to an exemption, means specified in the
16 order made under subsection (2) that provides for the
17 exemption.
18 (2) The Minister may, by order, exempt from a specified provision
19 of this Act --
20 (a) a specified person or a specified class of persons; or
21 (b) a specified activity or a specified class of activities; or
22 (c) a specified place, vehicle or thing or a specified class of
23 places, vehicles or things.
24 (3) An exemption may be granted on an application to, or on the
25 initiative of, the Minister.
26 (4) An exemption may be granted indefinitely or for a specified
27 period.
28 (5) An exemption may be expressed to apply --
29 (a) generally; or
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Part 15 Miscellaneous
Division 2 Other matters
s. 272
1 (b) in specified circumstances; or
2 (c) in respect of a specified area of the State.
3 (6) An exemption may be granted subject to specified conditions.
4 (7) If an exemption is granted subject to a specified condition, the
5 exemption has no effect at any time when the condition is being
6 contravened.
7 (8) A person to whom an exemption applies must not contravene
8 any condition to which the exemption is subject.
9 Penalty for this subsection: a fine of $50 000.
10 (9) This section does not affect the operation of the Interpretation
11 Act 1984 section 43(8)(d).
12 (10) Section 258 applies to an order made under subsection (2).
13 272. Resolution of matters relating to powers and duties of public
14 authorities
15 (1) In this section --
16 matter includes a question, difference or dispute;
17 responsible Minister, in relation to a public authority, means --
18 (a) if the public authority is a Minister of the State -- that
19 Minister; or
20 (b) if the public authority is an agency or an organisation as
21 defined in the Public Sector Management Act 1994
22 section 3(1) -- the Minister responsible for the
23 administration of that agency or organisation; or
24 (c) if the public authority is a local government or a
25 regional local government -- the Minister responsible
26 for the administration of the Local Government
27 Act 1995; or
28 (d) in any other case -- the Minister responsible for the
29 administration of the written law under which the public
30 authority, or the office held by the public authority, is
31 established or continued.
page 170
Biodiversity Conservation Bill 2015
Miscellaneous Part 15
Other matters Division 2
s. 273
1 (2) If, in the operation of this Act, a matter arises, or may arise,
2 with respect to the exercise of any right, power or authority of,
3 or the discharge of any duty by, a public authority under this
4 Act or another written law, then the responsible Minister and the
5 Minister may consult on the matter.
6 (3) If the Ministers reach agreement on the matter after consultation
7 under subsection (2), the Ministers must give such directions as
8 result from the agreement, and effect must be given to those
9 directions.
10 (4) If no consultation under subsection (2) is concluded or the
11 Ministers cannot reach agreement on the matter, the matter may
12 be finally and conclusively determined by the Governor, and
13 effect must be given to the determination.
14 273. Protection from liability for wrongdoing
15 (1) An action in tort does not lie against a person for anything that
16 the person has done, in good faith, in the performance or
17 purported performance of a function under this Act.
18 (2) The State is also relieved of any liability that it might otherwise
19 have had for another person having done anything as described
20 in subsection (1).
21 (3) The protection given by this section applies even though the
22 thing done as described in subsection (1) may have been
23 capable of being done whether or not this Act had been enacted.
24 (4) In this section, a reference to the doing of anything includes a
25 reference to an omission to do anything.
26 274. Information sharing
27 (1) In this section --
28 authorised officer means the CEO or a person designated under
29 subsection (2);
30 guidelines means guidelines issued under subsection (7);
page 171
Biodiversity Conservation Bill 2015
Part 15 Miscellaneous
Division 2 Other matters
s. 274
1 information sharing agency means any of the following --
2 (a) the department of the Public Service principally
3 assisting in the administration of the Animal Welfare
4 Act 2002;
5 (b) the department of the Public Service principally
6 assisting in the administration of the Biosecurity and
7 Agriculture Management Act 2007;
8 (c) the department of the Public Service principally
9 assisting in the administration of the Bush Fires
10 Act 1954;
11 (d) the department of the Public Service principally
12 assisting in the administration of the Environmental
13 Protection Act 1986;
14 (e) the department of the Public Service principally
15 assisting in the administration of the Fish Resources
16 Management Act 1994;
17 (f) the department of the Public Service principally
18 assisting in the administration of the Health Act 1911;
19 (g) the department of the Public Service principally
20 assisting in the administration of the Land
21 Administration Act 1997;
22 (h) the department of the Public Service principally
23 assisting in the administration of the Pearling Act 1990;
24 (i) the Forest Products Commission established by the
25 Forest Products Act 2000;
26 (j) the Police Force of Western Australia;
27 (k) the Western Australian Land Information Authority
28 established by the Land Information Authority Act 2006;
29 (l) the Western Australian Museum constituted under the
30 Museum Act 1969;
31 (m) the agency of the Commonwealth principally assisting
32 in the administration of the EPBC Act;
page 172
Biodiversity Conservation Bill 2015
Miscellaneous Part 15
Other matters Division 2
s. 274
1 (n) a public authority prescribed for the purposes of this
2 definition;
3 (o) an agency of the Commonwealth, another State, or a
4 Territory, prescribed for the purposes of this definition;
5 officer, in relation to an information sharing agency, means --
6 (a) an officer or employee in or of the agency; or
7 (b) if the agency is the Police Force of Western Australia --
8 a member of the Police Force of Western Australia;
9 relevant information means information relevant to the
10 administration or enforcement of this Act.
11 (2) The CEO may, in writing, designate a person employed in the
12 Department as an authorised officer for the purposes of this
13 section.
14 (3) An authorised officer may, in accordance with the guidelines,
15 disclose relevant information to an officer of an information
16 sharing agency.
17 (4) An authorised officer may, in accordance with the guidelines,
18 request a public authority that holds relevant information to
19 disclose the information to the authorised officer.
20 (5) Information may be disclosed under subsection (3), or in
21 compliance with a request under subsection (4), despite any
22 written law relating to confidentiality or secrecy.
23 (6) If information is disclosed, in good faith, under subsection (3),
24 or in compliance with a request under subsection (4) --
25 (a) no civil or criminal liability is incurred in respect of the
26 disclosure; and
27 (b) the disclosure is not to be regarded as a breach of any
28 duty of confidentiality or secrecy imposed by law; and
29 (c) the disclosure is not to be regarded as a breach of
30 professional ethics or standards or as unprofessional
31 conduct.
page 173
Biodiversity Conservation Bill 2015
Part 15 Miscellaneous
Division 2 Other matters
s. 275
1 (7) The CEO must issue guidelines as to the disclosure of
2 information under subsection (3) and the requesting of
3 information under subsection (4).
4 (8) The regulations may include provisions about --
5 (a) receiving and storing information disclosed for the
6 purposes of this Act; and
7 (b) restricting access to such information.
8 275. Confidentiality
9 (1) A person who is or has been engaged in the performance of
10 functions under this Act must not, directly or indirectly, record,
11 disclose or make use of any information obtained in the course
12 of duty except --
13 (a) for the purpose of, or in connection with, performing a
14 function under this Act; or
15 (b) as required or allowed under this Act or another written
16 law; or
17 (c) for the purposes of any legal proceedings arising under
18 this Act; or
19 (d) with the written consent of the person to whom the
20 information relates; or
21 (e) in prescribed circumstances.
22 Penalty for this subsection: a fine of $20 000.
23 (2) Subsection (1) does not extend to the recording, disclosure or
24 use of statistical or other information that could not reasonably
25 be expected to lead to the identification of any person to whom
26 it relates.
27 276. Certain information may be kept confidential
28 (1) In this section --
29 strategic document means any of the following --
30 (a) a biodiversity management programme;
page 174
Biodiversity Conservation Bill 2015
Miscellaneous Part 15
Other matters Division 2
s. 277
1 (b) a recovery plan;
2 (c) an interim recovery plan.
3 (2) This section applies if the Minister considers that the survival of
4 a native species or ecological community could be threatened by
5 the disclosure of some or all of the following information, or by
6 the presence or actions of persons if some or all of the following
7 information were disclosed --
8 (a) the precise location of the species in the wild or of the
9 community;
10 (b) any other information about the species or community.
11 (3) It is sufficient compliance with this Act if only a general
12 description of the location of the native species or ecological
13 community is included in a strategic document or other
14 instrument made or issued under this Act.
15 277. Review of Act
16 (1) The Minister must carry out a review of the operation and
17 effectiveness of this Act as soon as is practicable after every
18 5th anniversary of the commencement of this section.
19 (2) In the course of each review the Minister must consider and
20 have regard to --
21 (a) the objects of this Act; and
22 (b) the adequacy of the penalties imposed under this Act;
23 and
24 (c) any other matters that appear to the Minister to be
25 relevant to the operation and effectiveness of this Act.
26 (3) The Minister must prepare a report based on each review and, as
27 soon as is practicable after the report is prepared, cause it to be
28 laid before each House of Parliament.
page 175
Biodiversity Conservation Bill 2015
Part 16 Repeals and transitional provisions
Division 1 Repeal of Wildlife Conservation Act 1950
s. 278
1 Part 16 -- Repeals and transitional provisions
2 Division 1 -- Repeal of Wildlife Conservation Act 1950
3 Subdivision 1 -- Repeals
4 278. Wildlife Conservation Act 1950 repealed
5 The Wildlife Conservation Act 1950 is repealed.
6 279. Subsidiary legislation repealed
7 The following subsidiary legislation is repealed:
8 (a) the Wildlife Conservation Regulations 1970;
9 (b) the Wildlife Conservation (Reptiles and Amphibians)
10 Regulations 2002;
11 (c) any notice made under the Wildlife Conservation
12 Act 1950 section 6(2), (4) or (6), 14(2) or (4), 18(1) or
13 23F(2) that is in force immediately before the day on
14 which section 278 comes into operation.
15 Subdivision 2 -- Transitional provisions
16 280. Consents under Wildlife Conservation Act 1950 s. 23F
17 (1) In this section --
18 commencement day means the day on which section 278 comes
19 into operation.
20 (2) A consent to take rare flora given under the Wildlife
21 Conservation Act 1950 section 23F and in force immediately
22 before commencement day is to be taken to be an authorisation
23 given under section 40 to take that flora.
page 176
Biodiversity Conservation Bill 2015
Repeals and transitional provisions Part 16
Repeal of Sandalwood Act 1929 Division 2
s. 281
1 Division 2 -- Repeal of Sandalwood Act 1929
2 Subdivision 1 -- Repeals
3 281. Sandalwood Act 1929 repealed
4 The Sandalwood Act 1929 is repealed.
5 282. Sandalwood Regulations 1993 repealed
6 The Sandalwood Regulations 1993 are repealed.
7 Subdivision 2 -- Transitional provisions
8 283. Licences under Sandalwood Act 1929
9 (1) In this section --
10 commencement day means the day on which section 281 comes
11 into operation;
12 sandalwood licence means a licence referred to in the
13 Sandalwood Act 1929 section 3(1)(a) or (b).
14 (2) A sandalwood licence that was in force immediately before
15 commencement day is to be taken to be a licence granted under
16 this Act on the conditions (if any) applying to the licence
17 immediately before commencement day and, subject to the
18 regulations, has effect accordingly.
19 (3) An application for a sandalwood licence that was not
20 determined before commencement day may be dealt with under
21 the regulations as an application for a licence under this Act.
22 Division 3 -- Transitional regulations
23 284. Transitional regulations
24 (1) In this section --
25 publication day, for transitional regulations, means the day on
26 which those regulations are published in the Gazette;
page 177
Biodiversity Conservation Bill 2015
Part 16 Repeals and transitional provisions
Division 3 Transitional regulations
s. 284
1 relevant commencement day, in relation to transitional
2 regulations, means --
3 (a) to the extent that the regulations deal with a transitional
4 matter relating to the provisions of written laws repealed
5 by Division 1 -- the day on which that Division comes
6 into operation; and
7 (b) to the extent that the regulations deal with a transitional
8 matter relating to the provisions of the written laws
9 repealed by Division 2 -- the day on which that
10 Division comes into operation;
11 specified means specified or described in transitional
12 regulations;
13 transitional matter --
14 (a) means a matter that needs to be dealt with for the
15 purpose of effecting the transition from the provisions of
16 the written laws repealed by Divisions 1 and 2 to the
17 provisions of this Act; and
18 (b) includes a saving or application matter;
19 transitional regulations means regulations under subsection (2).
20 (2) If there is no sufficient provision in this Part for dealing with a
21 transitional matter, the regulations may prescribe matters --
22 (a) required to be prescribed for the purpose of dealing with
23 the transitional matter; or
24 (b) necessary or convenient to be prescribed for the purpose
25 of dealing with the transitional matter.
26 (3) Transitional regulations may provide that specified provisions
27 of this Act --
28 (a) do not apply to or in relation to a specified matter; or
29 (b) apply with specified modifications to or in relation to a
30 specified matter.
31 (4) If transitional regulations provide that a specified state of affairs
32 is to be taken to have existed, or not to have existed, on and
page 178
Biodiversity Conservation Bill 2015
Repeals and transitional provisions Part 16
General Division 4
s. 285
1 from a day that is earlier than publication day for those
2 regulations but not earlier than the relevant commencement day,
3 the regulations have effect according to their terms.
4 (5) If transitional regulations contain a provision referred to in
5 subsection (4), the provision does not operate so as --
6 (a) to affect, in a manner prejudicial to any person (other
7 than the State or an authority of the State), the rights of
8 that person existing before publication day for those
9 regulations; or
10 (b) to impose liabilities on any person (other than the State
11 or an authority of the State) in respect of anything done
12 or omitted to be done before publication day for those
13 regulations.
14 (6) Transitional regulations can only be made within 24 months
15 after the day on which this Act receives the Royal Assent.
16 Division 4 -- General
17 285. Interpretation Act 1984 not affected
18 This Part does not limit or otherwise affect the operation of the
19 Interpretation Act 1984 in relation to the repeals effected by
20 Divisions 1 and 2.
page 179
Biodiversity Conservation Bill 2015
Part 17 Consequential amendments to other Acts
Division 1 Conservation and Land Management Act 1984 amended
s. 286
1 Part 17 -- Consequential amendments to other Acts
2 Division 1 -- Conservation and Land Management
3 Act 1984 amended
4 286. Act amended
5 This Division amends the Conservation and Land Management
6 Act 1984.
7 287. Long title amended
8 In the long title before "and for incidental or connected
9 purposes." insert:
10
11 to confer functions relating to the conservation, protection
12 and management of biodiversity and biodiversity
13 components,
14
15 288. Section 3 amended
16 (1) In section 3 delete the definitions of:
17 biodiversity
18 biodiversity components
19 fauna
20 flora
21 (2) In section 3 insert in alphabetical order:
22
23 biodiversity has the meaning given in the Biodiversity
24 Conservation Act 2015 section 5(1);
25 biodiversity components has the meaning given in the
26 Biodiversity Conservation Act 2015 section 5(1);
27 conserve includes to maintain and to restore;
28 fauna has the meaning given in the Biodiversity
29 Conservation Act 2015 section 5(1);
page 180
Biodiversity Conservation Bill 2015
Consequential amendments to other Acts Part 17
Conservation and Land Management Act 1984 amended Division 1
s. 289
1 flora has the meaning given in the Biodiversity
2 Conservation Act 2015 section 5(1);
3
4 289. Section 13A amended
5 In section 13A(1):
6 (a) in paragraph (a) delete "and restoration";
7 (b) in paragraph (b) delete "indigenous".
8 290. Section 13B amended
9 In section 13B(1):
10 (a) delete "and restoration";
11 (b) delete "indigenous".
12 291. Section 19 amended
13 In section 19(1):
14 (a) in paragraph (d) delete "conservation" and insert:
15
16 conservation, protection
17
18 (b) after paragraph (g) insert:
19
20 (haa) to participate in the preparation of the following
21 documents under the Biodiversity Conservation
22 Act 2015 Parts 5 and 6 when consulted in
23 accordance with those Parts --
24 (i) draft biodiversity management
25 programmes;
26 (ii) draft recovery plans;
27 (iii) interim recovery plans;
28
page 181
Biodiversity Conservation Bill 2015
Part 17 Consequential amendments to other Acts
Division 1 Conservation and Land Management Act 1984 amended
s. 292
1 292. Section 33 amended
2 (1) In section 33(1):
3 (a) delete paragraph (ca) and insert:
4
5 (ca) to promote and encourage the use of fauna and
6 flora for therapeutic, scientific, breeding,
7 propagation or cultivation purposes for the
8 good of the people in the State and elsewhere,
9 and to undertake any project or operation
10 relating to the use of fauna or flora for such a
11 purpose; and
12
13 (b) in paragraph (cc) delete "conservation of biodiversity
14 throughout" and insert:
15
16 conservation, protection and management of
17 biodiversity and biodiversity components in
18
19 (c) delete paragraph (d) and insert:
20
21 (d) to promote, encourage and facilitate the
22 conservation, protection and management of
23 biodiversity and biodiversity components in the
24 State; and
25 (daa) to promote, encourage and facilitate the
26 planning for and establishment of a
27 comprehensive, adequate and representative
28 system of reserves for the purposes of
29 conserving, protecting and managing
30 biodiversity and biodiversity components in the
31 State; and
32 (dab) to promote, facilitate and manage nature-based
33 tourism and recreation, as defined in the
34 Biodiversity Conservation Act 2015
page 182
Biodiversity Conservation Bill 2015
Consequential amendments to other Acts Part 17
Conservation and Land Management Act 1984 amended Division 1
s. 292
1 section 190, in the State in accordance with this
2 Act and the Biodiversity Conservation
3 Act 2015; and
4
5 (d) delete paragraph (e)(ii) and insert:
6
7 (ii) the conservation, protection and
8 management of biodiversity and
9 biodiversity components in the State;
10 and
11
12 (e) after paragraph (e) insert:
13
14 (fa) to carry out or cause to be carried out surveys
15 of biodiversity and biodiversity components in
16 the State including surveys of the distribution
17 and abundance of native species and ecological
18 communities as those terms are defined in the
19 Biodiversity Conservation Act 2015
20 section 5(1); and
21 (fb) to facilitate the implementation of agreements
22 referred to in the Environment Protection and
23 Biodiversity Conservation Act 1999
24 (Commonwealth) section 45(2) to which the
25 State is a party; and
26
27 (f) after paragraph (g) insert:
28
29 (ha) to enter into collaborative arrangements with
30 any department, public or private body or other
31 person, whether in the State or elsewhere, for
32 the purposes of performing a function referred
33 to in any of paragraphs (a), (ca), (cc) to (ea) and
34 (gb); and
page 183
Biodiversity Conservation Bill 2015
Part 17 Consequential amendments to other Acts
Division 1 Conservation and Land Management Act 1984 amended
s. 292
1 (hb) to perform functions conferred on the CEO
2 under the Biodiversity Conservation Act 2015;
3 and
4
5 (2) After section 33(1) insert:
6
7 (2A) In subsection (1)(ca) --
8 use includes use or development on a commercial
9 basis.
10
11 (3) Delete section 33(6) and insert:
12
13 (6) To promote and encourage the use of fauna and flora
14 for the purposes referred to in subsection (1)(ca), the
15 Minister and the CEO may enter into an agreement
16 with another person under which the Minister and the
17 CEO agree to exercise the powers under the
18 Biodiversity Conservation Act 2015 and this Act to
19 grant, issue or refuse licences or permits --
20 (a) to take flora in a manner that has the effect of
21 conferring on the other person an exclusive or
22 preferential right to take specified flora from
23 specified land (other than private land); or
24 (b) to take fauna in a manner that has the effect of
25 conferring on the other person an exclusive or
26 preferential right to take specified fauna from
27 specified land (including private land in
28 circumstances where consent to enter the land
29 is obtained from the occupier of the land).
30 (7A) In subsection (6) each of the following terms has the
31 meaning given in the Biodiversity Conservation
32 Act 2015 section 5(1) --
33 occupier
page 184
Biodiversity Conservation Bill 2015
Consequential amendments to other Acts Part 17
Conservation and Land Management Act 1984 amended Division 1
s. 293
1 private land
2 take
3 (7B) An agreement under subsection (6) may provide for the
4 exercise of powers referred to in that subsection to be
5 conditional on the other person entering into an
6 arrangement with the CEO for the sharing of profits.
7
8 (4) Delete section 33(8).
9 (5) In section 33(1) after each of paragraphs (a) to (bb), (cb), (cc),
10 (da) to (dd), (e), (f) and (g) insert:
11
12 and
13
14 293. Section 34A amended
15 (1) In section 34A(1) delete "a project or operation undertaken for a
16 purpose mentioned in section 33(1)(ca) or (cc) --" and insert:
17
18 the performance of a function referred to in section 33(1)(a),
19 (ca), (cc) to (fb), (ha) or (hb) --
20
21 (2) In section 34A(3) delete "engage in any scheme, project or
22 operation referred to in subsection (1)." and insert:
23
24 engage in --
25 (a) a scheme for the establishment, management or
26 utilisation of tree plantations; or
27 (b) an activity related to a function referred to in
28 section 33(1)(a), (ca), (cc) to (fb), (ha) or (hb).
29
page 185
Biodiversity Conservation Bill 2015
Part 17 Consequential amendments to other Acts
Division 1 Conservation and Land Management Act 1984 amended
s. 294
1 294. Section 37 amended
2 In section 37 delete "Wildlife Conservation Act 1950" and
3 insert:
4
5 Biodiversity Conservation Act 2015
6
7 295. Section 45 amended
8 Delete section 45(3), (3a) and (4) and insert:
9
10 (3) An instrument under subsection (1) may limit the
11 functions of the person designated to functions
12 specified in the instrument.
13 (4) Subject to any limitation under subsection (3), wildlife
14 officers --
15 (a) have the functions conferred on them under this
16 Act and the Biodiversity Conservation
17 Act 2015; and
18 (b) if authorised by the CEO for the purposes of
19 this paragraph, have the functions conferred on
20 them under the Bush Fires Act 1954; and
21 (c) have the functions conferred on them under any
22 other written law.
23 (5A) Subject to any limitation under subsection (3), forest
24 officers, rangers and conservation and land
25 management officers --
26 (a) have the functions conferred on them under this
27 Act; and
28 (b) if authorised by the CEO for the purposes of
29 this paragraph, have the functions conferred on
30 them under the Bush Fires Act 1954; and
page 186
Biodiversity Conservation Bill 2015
Consequential amendments to other Acts Part 17
Conservation and Land Management Act 1984 amended Division 1
s. 296
1 (c) have the functions conferred on them under any
2 other written law.
3
4 296. Section 46 amended
5 In section 46(3) delete "by or under this Act or the Wildlife
6 Conservation Act 1950" and insert:
7
8 under this Act, the Biodiversity Conservation Act 2015 or
9 another written law
10
11 297. Section 48 amended
12 In section 48(1) delete "1954 or the Wildlife Conservation
13 Act 1950," and insert:
14
15 1954, the Biodiversity Conservation Act 2015 or another written
16 law,
17
18 298. Section 56 amended
19 In section 56(1):
20 (a) in paragraph (c) delete "maintenance and restoration"
21 and insert:
22
23 conservation
24
25 (b) in paragraph (c) delete "indigenous";
26 (c) in paragraph (d) delete "maintain and restore" and
27 insert:
28
29 conserve
30
page 187
Biodiversity Conservation Bill 2015
Part 17 Consequential amendments to other Acts
Division 1 Conservation and Land Management Act 1984 amended
s. 299
1 (d) in paragraph (d) delete "indigenous".
2 299. Section 68 replaced
3 Delete section 68 and insert:
4
5 68. Biodiversity Conservation Account
6 (1) An agency special purpose account called the
7 Biodiversity Conservation Account is established under
8 the Financial Management Act 2006 section 16.
9 (2) The Biodiversity Conservation Account is a
10 continuation of the Nature Conservation and National
11 Parks Account referred to in section 68 of this Act as in
12 force immediately before the commencement of the
13 Biodiversity Conservation Act 2015 section 299.
14 (3) The Biodiversity Conservation Account is to be
15 credited with gifts, devises, bequests and donations
16 made to that account.
17 (4) The CEO is to apply money standing to the credit of
18 the Biodiversity Conservation Account for the purpose
19 of scientific research relating to biodiversity and
20 biodiversity components in the State.
21
22 300. Section 87 amended
23 In section 87(1) in the definition of forest produce paragraph (a)
24 delete "resin or sap; or" and insert:
25
26 resin, sap or seed; or
27
page 188
Biodiversity Conservation Bill 2015
Consequential amendments to other Acts Part 17
Conservation and Land Management Act 1984 amended Division 1
s. 301
1 301. Section 101B amended
2 (1) In section 101B(2a) delete the passage that begins with "in
3 accordance with" and continues to the end of the subsection and
4 insert:
5
6 in accordance with --
7 (a) a licence granted under regulations made under
8 section 130; or
9 (b) a licence granted under regulations made under
10 the Biodiversity Conservation Act 2015; or
11 (c) an authorisation given under the Biodiversity
12 Conservation Act 2015 section 40.
13
14 (2) In section 101B(3)(d) delete "notices issued or regulations made
15 under the Wildlife Conservation Act 1950" and insert:
16
17 regulations made under the Biodiversity Conservation Act 2015,
18 or an authorisation given under section 40 of that Act,
19
20 302. Section 103A amended
21 In section 103A(2) delete "Wildlife Conservation Act 1950" and
22 insert:
23
24 Biodiversity Conservation Act 2015
25
26 303. Section 106 amended
27 In section 106(b) delete "indigenous".
page 189
Biodiversity Conservation Bill 2015
Part 17 Consequential amendments to other Acts
Division 1 Conservation and Land Management Act 1984 amended
s. 304
1 304. Section 121 amended
2 Delete section 121(6)(a) and insert:
3
4 (a) limits the powers conferred on an enforcement
5 officer under another provision of this Act or
6 under the Biodiversity Conservation Act 2015,
7 the Bush Fires Act 1954 or another written law;
8 or
9
10 305. Section 124 amended
11 Delete section 124(2).
12 306. Section 125 replaced
13 Delete section 125 and insert:
14
15 125. Application of Criminal Investigation Act 2006 and
16 Criminal Investigation (Identifying People) Act 2002
17 to enforcement officers
18 (1) For the purposes of the Criminal Investigation
19 Act 2006 section 9(1) and the Criminal Investigation
20 (Identifying People) Act 2002 section 5(1), designation
21 as any of the following officers is to be taken to be an
22 appointment to an office --
23 (a) a wildlife officer under section 45(1)(a); or
24 (b) a forest officer under section 45(1)(b); or
25 (c) a ranger under section 45(1)(c); or
26 (d) a conservation and land management officer
27 under section 45(1)(d).
page 190
Biodiversity Conservation Bill 2015
Consequential amendments to other Acts Part 17
Conservation and Land Management Act 1984 amended Division 1
s. 306
1 (2) For the purposes of the Criminal Investigation
2 Act 2006 --
3 (a) the office of wildlife officer is prescribed under
4 section 9(1)(a) of that Act; and
5 (b) the following powers are prescribed under
6 section 9(1)(b) of that Act in respect of that
7 office --
8 (i) the powers in Part 2 of that Act;
9 (ii) the powers in Part 5 of that Act other
10 than the power in section 44(2)(g)(iv) to
11 do a strip search of a person;
12 (iii) the powers in Part 6 of that Act;
13 (iv) the powers in Part 8 of that Act to the
14 extent that they authorise, or apply in
15 relation to, the doing of a basic search
16 of a person;
17 (v) the powers in Part 9 of that Act to the
18 extent that they authorise, or apply in
19 relation to, the doing of a non-intimate
20 forensic procedure on a person;
21 (vi) the powers in Part 12 Divisions 2, 3 and
22 5 of that Act;
23 (vii) the powers in Part 13 of that Act.
24 (3) Despite the Criminal Investigation Act 2006
25 section 43(8)(b)(ii), a search warrant does not authorise
26 a wildlife officer to do a strip search of a person.
27 (4) For the purposes of the Criminal Investigation
28 (Identifying People) Act 2002 --
29 (a) each of the following offices is prescribed
30 under section 5(1)(a) of that Act --
31 (i) wildlife officer;
32 (ii) forest officer;
page 191
Biodiversity Conservation Bill 2015
Part 17 Consequential amendments to other Acts
Division 1 Conservation and Land Management Act 1984 amended
s. 307
1 (iii) ranger;
2 (iv) conservation and land management
3 officer;
4 (v) honorary wildlife officer;
5 (vi) honorary forest officer;
6 (vii) honorary ranger;
7 (viii) honorary conservation and land
8 management officer;
9 and
10 (b) the powers in Part 3 of that Act are specified
11 under section 5(1)(b) of that Act in respect of
12 each of those offices.
13 126A. Department a prescribed agency for the Criminal
14 and Found Property Disposal Act 2006
15 The Department is a prescribed agency for the
16 purposes of the Criminal and Found Property Disposal
17 Act 2006.
18
19 307. Section 127 amended
20 (1) In section 127 delete "The regulations" and insert:
21
22 (1) The regulations
23
24 (2) At the end of section 127 insert:
25
26 (2) Without limiting subsection (1)(d), the regulations may
27 provide for a licence granted to a person under the
28 Biodiversity Conservation Act 2015 to be included in a
29 permit document or licence document issued to the
30 person under this Act.
31
page 192
Biodiversity Conservation Bill 2015
Consequential amendments to other Acts Part 17
Conservation and Land Management Act 1984 amended Division 1
s. 308
1 308. Section 132 amended
2 (1) In section 132(1) delete "this Act or the Wildlife Conservation
3 Act 1950." and insert:
4
5 this Act.
6
7 (2) In section 132(2) and (4) delete "or the Wildlife Conservation
8 Act 1950".
9 309. Section 133 amended
10 (1) In section 133(1) delete the passage that begins with "Wildlife
11 Conservation Act 1950," and continues to the end of the
12 subsection and insert:
13
14 Biodiversity Conservation Act 2015, other than --
15 (a) this power of delegation; or
16 (b) the power to make any instrument of legislative
17 effect; or
18 (c) a function that the Minister has under the
19 Biodiversity Conservation Act 2015 section 260
20 or 261.
21
22 (2) In section 133(2) delete the passage that begins with "Wildlife
23 Conservation Act 1950," and continues to the end of the
24 subsection and insert:
25
26 Biodiversity Conservation Act 2015, other than --
27 (a) this power of delegation; or
28 (b) a function delegated to the CEO under
29 subsection (1); or
page 193
Biodiversity Conservation Bill 2015
Part 17 Consequential amendments to other Acts
Division 2 Other Acts amended
s. 310
1 (c) a function that the CEO has under the
2 Biodiversity Conservation Act 2015
3 section 122, 125 or 126.
4
5 Division 2 -- Other Acts amended
6 310. Animal Welfare Act 2002 amended
7 (1) This section amends the Animal Welfare Act 2002.
8 (2) In section 5(1) delete the definitions of:
9 CALM
10 fauna
11 (3) In section 5(1) insert in alphabetical order:
12
13 Biodiversity Conservation Department means the
14 department of the Public Service principally assisting
15 with the administration of the Biodiversity
16 Conservation Act 2015;
17 fauna has the meaning given in the Biodiversity
18 Conservation Act 2015 section 5(1);
19 lawfully taken, in relation to fauna, means taken in
20 circumstances that do not involve a contravention of
21 the Biodiversity Conservation Act 2015 or any other
22 written law;
23
24 (4) In section 7(2) delete "Wildlife Conservation Act 1950" and
25 insert:
26
27 Biodiversity Conservation Act 2015
28
page 194
Biodiversity Conservation Bill 2015
Consequential amendments to other Acts Part 17
Other Acts amended Division 2
s. 310
1 (5) Delete section 33(2)(a)(iii) and insert:
2
3 (iii) the Biodiversity Conservation Department; or
4
5 (6) In section 41(2)(a) delete "CALM; or" and insert:
6
7 the Biodiversity Conservation Department; or
8
9 (7) In section 44(1) delete "taken under the Wildlife Conservation
10 Act 1950." and insert:
11
12 taken.
13
14 (8) In section 45:
15 (a) delete "taken under the Wildlife Conservation
16 Act 1950," and insert:
17
18 taken,
19
20 (b) delete "CALM." and insert:
21
22 the Biodiversity Conservation Department.
23
24 (9) In section 55(2)(b)(i):
25 (a) delete "taken under the Wildlife Conservation
26 Act 1950," and insert:
27
28 taken,
29
page 195
Biodiversity Conservation Bill 2015
Part 17 Consequential amendments to other Acts
Division 2 Other Acts amended
s. 311
1 (b) delete "CALM; or" and insert:
2
3 the Biodiversity Conservation Department; or
4
5 (10) Delete section 64(1)(c) and insert:
6
7 (c) the Biodiversity Conservation Department; and
8
9 311. Biosecurity and Agriculture Management Act 2007 amended
10 (1) This section amends the Biosecurity and Agriculture
11 Management Act 2007.
12 (2) Before section 4(2)(c) insert:
13
14 (cb) the Biodiversity Conservation Act 2015;
15
16 (3) In section 6 delete the definitions of:
17 CALM Act Minister
18 Minister for the Environment
19 (4) In section 45(5)(b) delete "CALM Act Minister." and insert:
20
21 Minister administering the Biodiversity Conservation Act 2015.
22
23 (5) In section 184(1) in the definition of information sharing
24 agency paragraph (f) delete "Wildlife Conservation Act 1950;"
25 and insert:
26
27 Biodiversity Conservation Act 2015;
28
page 196
Biodiversity Conservation Bill 2015
Consequential amendments to other Acts Part 17
Other Acts amended Division 2
s. 312
1 312. Bush Fires Act 1954 amended
2 (1) This section amends the Bush Fires Act 1954.
3 (2) In section 7(1) delete the definition of authorised CALM Act
4 officer and insert:
5
6 authorised CALM Act officer means --
7 (a) a wildlife officer who is authorised for the
8 purposes of the Conservation and Land
9 Management Act 1984 section 45(4)(b); or
10 (b) a forest officer, ranger or conservation and land
11 management officer who is authorised for the
12 purposes of the Conservation and Land
13 Management Act 1984 section 45(5A)(b);
14
15 313. Constitution Acts Amendment Act 1899 amended
16 (1) This section amends the Constitution Acts Amendment Act 1899.
17 (2) In Schedule V Part 3 delete the item relating to the Western
18 Australian Wildlife Authority.
19 314. Environmental Protection Act 1986 amended
20 (1) This section amends the Environmental Protection Act 1986.
21 (2) In Schedule 5 clause 1:
22 (a) in paragraph (a) delete "biological diversity; or" and
23 insert:
24
25 biodiversity; or
26
27 (b) in paragraph (b) delete "fauna indigenous to Western
28 Australia; or" and insert:
29
30 fauna; or
31
page 197
Biodiversity Conservation Bill 2015
Part 17 Consequential amendments to other Acts
Division 2 Other Acts amended
s. 315
1 (c) in paragraph (c) delete "rare flora; or" and insert:
2
3 threatened flora; or
4
5 (3) In Schedule 5 clause 2 delete the definitions of:
6 rare flora
7 threatened ecological community
8 (4) In Schedule 5 clause 2 insert in alphabetical order:
9
10 biodiversity has the meaning given in the Biodiversity
11 Conservation Act 2015 section 5(1);
12 fauna has the meaning given in the Biodiversity
13 Conservation Act 2015 section 5(1);
14 threatened ecological community has the meaning given in
15 the Biodiversity Conservation Act 2015 section 5(1);
16 threatened flora has the meaning given in the Biodiversity
17 Conservation Act 2015 section 5(1);
18
19 (5) Delete Schedule 6 items 4, 5 and 6 and insert:
20
21 4. Clearing consisting of the taking of flora --
22 (a) as authorised by a licence under the Biodiversity
23 Conservation Act 2015; or
24 (b) as authorised by an authorisation under the
25 Biodiversity Conservation Act 2015 section 40; or
26 (c) by a person referred to in the Biodiversity
27 Conservation Act 2015 section 171(2) for the
28 purposes of supply in accordance with a licence
29 under that Act.
30
31 315. Financial Management Act 2006 amended
32 (1) This section amends the Financial Management Act 2006.
page 198
Biodiversity Conservation Bill 2015
Consequential amendments to other Acts Part 17
Other Acts amended Division 2
s. 316
1 (2) In section 23(1) in the definition of prescribed receipts
2 paragraph (b) delete "fauna or".
3 316. Firearms Act 1973 amended
4 (1) This section amends the Firearms Act 1973.
5 (2) Delete section 23(10b) and insert:
6
7 (11A) For the purposes of subsections (10) and (10a), the fact
8 that a person uses or carries a firearm for the purposes
9 of an activity authorised under the Biodiversity
10 Conservation Act 2015 is not a reasonable excuse.
11
12 317. Forest Products Act 2000 amended
13 (1) This section amends the Forest Products Act 2000.
14 (2) In section 10(5) delete "Wildlife Conservation Act 1950" and
15 insert:
16
17 Biodiversity Conservation Act 2015
18
19 318. Land Administration Act 1997 amended
20 (1) This section amends the Land Administration Act 1997.
21 (2) In section 117:
22 (a) delete paragraph (d) and insert:
23
24 (d) the Biodiversity Conservation Act 2015; or
25
26 (b) after paragraph (a) insert:
27
28 or
29
page 199
Biodiversity Conservation Bill 2015
Part 17 Consequential amendments to other Acts
Division 2 Other Acts amended
s. 319
1 319. Land Tax Assessment Act 2002 amended
2 (1) This section amends the Land Tax Assessment Act 2002.
3 (2) After section 41 insert:
4
5 42A. Land under biodiversity conservation covenant,
6 exemption for
7 Land is exempt for an assessment year if the land is the
8 subject of a biodiversity conservation covenant under
9 the Biodiversity Conservation Act 2015 that is
10 expressed to have effect in perpetuity and that was in
11 force at midnight on 30 June in the financial year
12 before the assessment year.
13
14 320. Soil and Land Conservation Act 1945 amended
15 (1) This section amends the Soil and Land Conservation Act 1945.
16 (2) In the Schedule delete "Sandalwood Act 1929".
17 (3) In the Schedule insert in alphabetical order:
18
19 Biodiversity Conservation Act 2015
20
page 200
Biodiversity Conservation Bill 2015
Matters for which regulations may be made Schedule 1
1 Schedule 1 -- Matters for which regulations may be made
2 [s. 255(2)]
3 1. The taking, possession, disturbance, keeping, breeding, feeding,
4 release, buying, import, export, supply, storage and transportation of
5 fauna and the conduct of any business involving one or more of those
6 activities.
7 2. The processing of fauna (other than fish or pearl oyster), whether for a
8 commercial purpose or not, and the operation of fauna processing
9 establishments.
10 3. The taking, growing, cultivation, buying, import, export, supply,
11 storage and transportation of flora and the conduct of any business
12 involving one or more of those activities.
13 4. Bioprospecting activity.
14 5. Activity that is, or is likely to be, detrimental or harmful to fauna or
15 flora or the habitat of fauna or flora.
16 6. Activity that interferes with the taking of fauna or flora carried out in
17 accordance with a licence, exemption or other authorisation under
18 this Act.
19 7. Activity that interferes with the modification of a threatened
20 ecological community carried out in accordance with an authorisation
21 under section 45.
22 8. The conservation, protection and management of threatened species
23 and threatened ecological communities.
24 9. The prevention, eradication, reduction and containment of key
25 threatening processes.
26 10. The control of environmental pests.
27 11. The keeping, breeding, cultivation, culturing, import, propagation,
28 supply, transportation, and release into the environment of,
29 environmental pests.
30 12. Activity that interferes with the conduct of any research project
31 relating to biodiversity or biodiversity components in the State.
page 201
Biodiversity Conservation Bill 2015
Schedule 1 Matters for which regulations may be made
1 13. The conservation, protection and management of --
2 (a) the natural heritage of any declared World Heritage property
3 in the State in a way that is consistent with the Australian
4 World Heritage management principles and any
5 management plan for the property; or
6 (b) the natural heritage of any National Heritage place in the
7 State in a way that is consistent with the National Heritage
8 management principles and any management plan for the
9 place; or
10 (c) the ecological character of any declared Ramsar wetland in
11 the State in a way that is consistent with the Australian
12 Ramsar management principles and any management plan
13 for the wetland; or
14 (d) any Biosphere reserve in the State in a way that is consistent
15 with the Australian Biosphere reserve management
16 principles and any management plan for the reserve.
17 14. Places, plant or equipment used for the holding or storage of fauna,
18 flora or environmental pests and the duties of persons operating or in
19 control of such places, plant or equipment.
20 15. The issue, use and application of identifiers in respect of fauna, flora
21 and other organisms.
22 16. The imposition, payment, collection and recovery of fees and charges
23 in respect of prescribed matters, including, without limiting the
24 Interpretation Act 1984 section 45, provision for --
25 (a) the payment of any fee or charge by instalments; and
26 (b) the imposition of a surcharge in respect of any fee or charge
27 paid by instalments.
28 17. The recovery of costs and expenses incurred under this Act.
29 18. A requirement for particular money paid or recovered under the
30 regulations to be credited to the account referred to in the CALM Act
31 section 68
32 19. The review by the State Administrative Tribunal or another specified
33 person or body of decisions made under the regulations.
34 20. If this Act is a prescribed Act for the purposes of the Criminal
35 Procedure Act 2004 Part 2, offences for which infringement notices
page 202
Biodiversity Conservation Bill 2015
Matters for which regulations may be made Schedule 1
1 may be issued under that Part and other matters referred to in the
2 Criminal Procedure Act 2004 sections 5 and 6.
3 21. The verification of information or documentation, including a
4 requirement for a statutory declaration to be made about a matter.
5
page 203
Biodiversity Conservation Bill 2015
Defined terms
Defined terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined term Provision(s)
abandoned fauna .............................................................................................. 5(1)
Aboriginal customary purpose .......................................................................... 181
Aboriginal person ............................................................................................. 181
accessory after the fact to an offence ........................................................... 234(1)
adopted plan ........................................................................................................ 81
agent .................................................................................................240(1), 240(3)
agreement land ............................................................................................. 115(1)
agricultural activity ...................................................................................... 136(1)
animal .............................................................................................................. 5(1)
annual report .................................................................................................... 5(1)
application.................................................................................................... 211(1)
applied provision............................................................................................... 202
apply ................................................................................................................ 5(1)
approved plan...................................................................................................... 81
aquatic eco-tourism ........................................................................................... 190
authorisation ................................................................................41(1), 46(1), 247
authorised officer ......................................................................................... 274(1)
authorised person ......................................................................................... 252(1)
biodiversity ...................................................................................................... 5(1)
biodiversity components .................................................................................. 5(1)
biodiversity conservation ................................................................................. 5(1)
biodiversity conservation agreement .................................................. 5(1), 114(1)
biodiversity conservation covenant ..................................................... 5(1), 122(1)
biodiversity conservation measures ................................................................. 5(1)
biodiversity management programme .............................................................. 5(1)
biological resources ......................................................................................... 5(1)
bioprospecting activity ..................................................................................... 5(1)
biosecurity measures ........................................................................................ 5(1)
business day ..................................................................................................... 5(1)
CALM Act ....................................................................................................... 5(1)
CALM Act land ....................................................................................... 5(1), 181
CALM Act officer ........................................................................................... 5(1)
capture.............................................................................................................. 5(1)
carcass .............................................................................................................. 5(1)
CEO ................................................................................................................. 5(1)
cetacean............................................................................................................ 5(1)
CI Act .............................................................................................................. 5(1)
class ................................................................................................................. 5(1)
closed area ................................................................................................... 164(1)
coastal sea ........................................................................................................ 8(1)
page 204
Biodiversity Conservation Bill 2015
Defined terms
code .............................................................................................................. 257(1)
code of practice ............................................................................................ 194(1)
collapsed ecological community ...................................................................... 5(1)
commencement day .........................................................................280(1), 283(1)
commercial operator ......................................................................................... 190
commercial purpose ......................................................................................... 5(1)
Commission ..................................................................................................... 5(1)
compliance statement ................................................................................... 144(1)
condition .......................................................................................................... 5(1)
conserve ........................................................................................................... 5(1)
container .......................................................................................................... 5(1)
continental shelf ............................................................................................... 8(1)
contravene ........................................................................................................ 5(1)
control .............................................................................................................. 5(1)
covenant land .................................................................................................... 121
covenantor............................................................................................ 121, 122(1)
critical habitat .................................................................................................. 5(1)
critically endangered ecological community ................................................... 5(1)
critically endangered species ........................................................................... 5(1)
Crown land....................................................................................................... 5(1)
cultivated flora ................................................................................................. 5(1)
deal with....................................................................................................... 207(1)
declared pest .................................................................................................... 5(1)
Department ...................................................................................................... 5(1)
Director General .......................................................................................... 136(1)
disturb .............................................................................................................. 5(1)
disturbance ................................................................................................... 185(1)
do a forensic examination ............................................................................ 209(1)
draft plan ............................................................................................................. 81
draft programme ................................................................................................. 68
dwelling ............................................................................................................ 195
ecological community ...................................................................................... 5(1)
ecologically sustainable use ............................................................................. 5(1)
ecosystem ......................................................................................................... 5(1)
employer ..........................................................................................241(1), 241(3)
endangered ecological community................................................................... 5(1)
endangered species .......................................................................................... 5(1)
entry warrant ..................................................................................................... 195
environmental damage ...................................................................................... 242
environmental pest ........................................................................................... 5(1)
environmental pest notice ................................................................... 5(1), 135(2)
environmental protection policy ...................................................................... 5(1)
EPBC Act......................................................................................................... 5(1)
exclusive economic zone ................................................................................. 5(1)
exclusive native title ......................................................................................... 181
page 205
Biodiversity Conservation Bill 2015
Defined terms
exclusive native title holder .............................................................................. 181
exemption ......................................................................................................... 247
export ............................................................................................................... 5(1)
external Territory ............................................................................................. 5(1)
extinct species .................................................................................................. 5(1)
fauna ............................................................................................5(1), 145, 158(1)
fauna processing establishment........................................................................ 5(1)
fish ................................................................................................................... 5(1)
flora ..............................................................................................5(1), 166, 178(1)
flora processing establishment ......................................................................... 5(1)
genetic resources .............................................................................................. 5(1)
guidelines ..................................................................................................... 274(1)
habitat .............................................................................................................. 5(1)
habitat conservation notice ................................................................... 5(1), 59(1)
habitat damage .................................................................................................... 58
identifier ........................................................................................................... 5(1)
import............................................................................................................... 5(1)
information sharing agency.......................................................................... 274(1)
injured fauna .................................................................................................... 5(1)
inspection purposes ........................................................................................... 195
instrument ......................................................................................................... 195
interim recovery plan ....................................................................................... 5(1)
joint recovery plan ......................................................................................... 91(1)
key threatening process .................................................................................... 5(1)
label ................................................................................................................. 5(1)
land .................................................................................................................. 5(1)
land of conservation value .................................................................. 41(1), 46(1)
lawful activity .................................................................................................. 5(1)
lawful authority ................................................................................................ 5(1)
licence .............................................................................................................. 5(1)
licensed premises .............................................................................................. 195
listing decision .................................................................................................... 36
managed fauna ................................................................................................. 5(1)
matter ........................................................................................................... 272(1)
ministerial guidelines ....................................................................................... 5(1)
minor amendment ......................................................................................... 68, 81
mobile home .................................................................................................... 5(1)
modify ................................................................................................................. 44
native species ................................................................................................... 5(1)
nature-based tourism and recreation ................................................................. 190
new plan ...........................................................................................102(5), 112(5)
new programme ............................................................................................. 79(5)
nomination ............................................................................................... 36, 39(1)
notice ........................................................................................................... 268(1)
NT Act .............................................................................................................. 181
page 206
Biodiversity Conservation Bill 2015
Defined terms
obstruct ............................................................................................................ 5(1)
occupier.................................................................................................... 5(1), 195
offence ......................................................................................... 195, 239(1), 247
officer ...............................................................................................237(1), 274(1)
old plan ............................................................................................102(5), 112(5)
old programme ............................................................................................... 79(5)
organism .......................................................................................................... 5(1)
other party to the agreement ........................................................................ 116(1)
owner ............................................................................................................... 5(1)
part ................................................................................................................... 5(1)
partner A ...................................................................................................... 239(3)
partner B ...................................................................................................... 239(4)
partner C ...................................................................................................... 239(5)
partner D ...................................................................................................... 239(6)
pearl oyster....................................................................................................... 5(1)
permanent covenant ..................................................................................... 126(1)
pest control notice ........................................................................................ 136(1)
photograph ........................................................................................................ 195
place ................................................................................................................. 5(1)
plant ................................................................................................................. 5(1)
potential carrier ................................................................................................ 5(1)
prescribed......................................................................................................... 5(1)
principal ...........................................................................................240(1), 240(3)
principal offence .......................................................................................... 234(3)
private land ...................................................................................................... 5(1)
process ............................................................................................................. 5(1)
prohibited device.............................................................................................. 5(1)
prohibited method ............................................................................................ 5(1)
proposed notice ............................................................................................ 137(1)
proposed plan ...................................................................................................... 81
public authority ................................................................................................ 5(1)
publication day ............................................................................................. 284(1)
purposes of sport or recreation ..................................................................... 163(5)
reasonably suspects ........................................................................................... 195
record ............................................................................................................... 5(1)
recovery plan ................................................................................................... 5(1)
register .............................................................................................................. 121
Registrar ........................................................................................................... 5(1)
relevant authorisation ....................................................................................... 7(1)
relevant commencement day........................................................................ 284(1)
relevant community ............................................................................ 46(1), 53(1)
relevant habitat .................................................................................... 41(1), 46(1)
relevant information ..................................................................................... 274(1)
relevant instrument ........................................................................................... 216
relevant offence................................................................................................. 242
page 207
Biodiversity Conservation Bill 2015
Defined terms
relevant record ............................................................................................. 204(1)
relevant species ................................................................................... 41(1), 53(1)
remedial action .................................................................................... 5(1), 217(1)
remediation measures ....................................................................................... 242
remediation order .............................................................................................. 242
remote communication ................................................................................ 211(1)
responsible authority .................................................................................... 164(1)
responsible Minister ..................................................................................... 272(1)
sandalwood ............................................................................. 5(1), 187(1), 187(6)
sandalwood licence ...................................................................................... 283(1)
section 50 notice ............................................................................................ 51(1)
seized thing .................................................................................................. 230(1)
self-governing Territory ................................................................................... 5(1)
specially protected fauna.................................................................................. 5(1)
specially protected flora ................................................................................... 5(1)
specially protected species ............................................................................... 5(1)
species .............................................................................................................. 5(1)
specified ............................... 58, 115(1), 187(1), 205(1), 242, 247, 271(1), 284(1)
State agreement ................................................................................................ 5(1)
strategic document ....................................................................................... 276(1)
subsidiary legislation ................................................................................... 257(1)
supply ............................................................................................................... 5(1)
take................................................................................................................... 5(1)
taken ............................................................................................................. 187(1)
taking ........................................................................................................... 185(1)
technical amendment .......................................................................................... 81
temporarily care for ..................................................................................... 161(1)
thing relevant to an offence............................................................................... 195
threatened ecological community .................................................................... 5(1)
threatened fauna ............................................................................................... 5(1)
threatened flora ................................................................................................ 5(1)
threatened species ............................................................................................ 5(1)
threatening process .......................................................................................... 5(1)
transitional matter ........................................................................................ 284(1)
transitional regulations ................................................................................. 284(1)
treat .................................................................................................................. 5(1)
vehicle .............................................................................................................. 5(1)
vulnerable ecological community .................................................................... 5(1)
vulnerable species ............................................................................................ 5(1)
Western Australian waters ............................................................................. 54(3)
wildlife officer ................................................................................................. 5(1)
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